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On the interpretation of the provisions of the Constitutional Court’s rulings of 30 March 2000, 24 January 2003, 13 May 2004, and 16 January 2006 related to the independence of prosecutors and the dismissal of the Prosecutor General from office

Case No. 26/98, 20/01, 43/03-46/03, 7/03-41/03-40/04-46/04-5/05-7/05-17/05

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE CONSTRUCTION OF CERTAIN PROVISIONS OF THE RULINGS OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 30 MARCH 2000, 24 JANUARY 2003, 13 MAY 2004, AND 16 JANUARY 2006

 16 January 2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

Indrė Pukanasytė, an advisor to the President of the Republic, acting as the representative of the President of the Republic of Lithuania, the petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 19 December 2013, at the Court’s public hearing, considered the petition of the President of the Republic of Lithuania requesting a construction of the provisions of Item 7 of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 30 March 2000, the second paragraph of Item 4 as well as the first paragraph of Item 6 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 24 January 2003, the sixth paragraph of Item 4.5 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 13 May 2004, and the third paragraph of Item 15.3 of Section I of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 16 January 2006.

The Constitutional Court

has established:

  1. On 30 March 2000, in constitutional justice case No. 26/98, the Constitutional Court adopted the Ruling “On the compliance of the 6 October 1998 Seimas of the Republic of Lithuania decision to reject a Draft Resolution of the Seimas ‘On Forming a Special Investigatory Commission’ and the 6 October 1998 Seimas of the Republic of Lithuania Resolution ‘On the Proposal of a Group of Seimas Members of 28 September 1998 “On the Initiation of Impeachment Proceedings Against the Member of the Seimas Audrius Butkevičius”’ with the Constitution of the Republic of Lithuania, Paragraph 1 of Article 24, Article 238, Paragraphs 1 and 3 of Article 239 and Articles 241 and 243 of the Statute of the Seimas of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2000, No. 28-784; hereinafter also referred to as the Constitutional Court’s ruling of 30 March 2000).
  2. On 24 January 2003, in constitutional justice case No. 20/01, the Constitutional Court adopted the Ruling “On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Republic of Lithuania’s Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2003, No. 10-366; hereinafter also referred to as the Constitutional Court’s ruling of 24 January 2003).
  3. On 13 May 2004, in constitutional justice case No. 43/03-46/03, the Constitutional Court adopted the Ruling “On the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions with the Constitution of the Republic of Lithuania, as well as on the petition of a group of the members of the Seimas, the petitioner, requesting an investigation into whether Seimas of the Republic of Lithuania Resolution No. IX-1868 ‘On the Conclusion of the Provisional Commission of the Seimas for Investigation into Possible Threats to Lithuanian National Security’ of 2 December 2003 is not in conflict with the Constitution of the Republic of Lithuania and Articles 3 and 8 (wording of 3 April 2003) of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions” (Official Gazette Valstybės žinios, 2004, No. 81-2903; hereinafter also referred to as the Constitutional Court’s ruling of 13 May 2004).
  4. On 16 January 2006, in constitutional justice case No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05, the Constitutional Court adopted the Ruling “On the compliance of Paragraph 4 (wording of 11 September 2001) of Article 131 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania, on the compliance of Paragraph 5 (wordings of 10 April 2003 and 16 September 2003) of Article 234, Paragraph 2 (wordings of 10 April 2003 and 16 September 2003) of Article 244, Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412, Paragraph 5 (wording of 14 March 2002) of Article 413 and Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania, and on the petitions of the Šiauliai District Local Court, the petitioner, requesting an investigation into whether Article 410 (wording of 14 March 2002) of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2006, No. 7-254; hereinafter also referred to as the Constitutional Court’s ruling of 16 January 2006).
  5. The President of the Republic, the petitioner, requests a construction of whether:

1) the provisions “[t]o discharge their functions properly, prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution” of the second paragraph of Item 4 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003, as well as the provisions “the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases” of the sixth paragraph of Item 4.5 of Section II of the reasoning part of the Constitutional Court’s ruling of 13 May 2004 and of the third paragraph of Item 15.3 of Section I of the reasoning part of the Constitutional Court’s ruling of 16 January 2006, inter alia, may be construed as meaning that it is not permitted to establish that the Prosecutor General is under a duty to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, since this would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, as well as that, once the said duty were established for the Prosecutor General to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, this would restrict the independence of prosecutors in performing their functions provided for in the Constitution;

2) the provisions “<...> the legislature has the powers <...> to establish the term of the powers of prosecutors as well as the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also by the principle of a state under the rule of law, entrenched therein, which implies the legal certainty, stability, and the protection of legitimate expectations. After having established the term of the powers of the Prosecutor General, the legislature does not have the right to provide for any grounds for the dismissal of the Prosecutor General from office before the expiry of the term of the powers of the Prosecutor General. Under the Constitution, the legislature may establish only such grounds for the dismissal of the Prosecutor General from office before the expiry of his or her powers due to which the Prosecutor General may not hold office on the whole (e.g., due to such legal facts as the age provided for in the law, transference to another place of work, or the loss of the citizenship of the Republic of Lithuania)” of the first paragraph of Item 6 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003, as well as the provisions of Item 7 of the reasoning part of the Constitutional Court’s ruling of 30 March 2000 that Article 76 of the Constitution, under which the structure and procedure of the activities of the Seimas are established by the Statute of the Seimas and the Statute of the Seimas has the power of law, lays down “[a] blanket norm <...> which permits the Seimas to establish, by itself, its structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural sub-units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas”, inter alia, may be construed as meaning that the grounds, as well as the procedure or separate elements of the procedure, for the dismissal of the Prosecutor General (inter alia, as to which institution or official has the right to participate in submitting proposals and adopting decisions related to the dismissal of the Prosecutor General, as well as in what cases the question of the dismissal of the Prosecutor General may be considered) may be established not only in a law but also in the Statute of the Seimas, which has the power of law, or in a legal act adopted by the Seimas for the implementation of a particular law.

The Constitutional Court

holds that:

I

  1. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that the Constitutional Court may officially construe its own ruling at the request of the persons that participated in the case, of other institutions or persons to whom it was sent, or on its own initiative. Under Paragraph 1 of Article 60 of the Law on the Constitutional Court, a ruling of the Constitutional Court is sent, inter alia, to the President of the Republic. Thus, the President of the Republic has the right to request the Constitutional Court to construe the provisions of a certain ruling of the Constitutional Court.
  2. The Law on the Constitutional Court consolidates the powers of the Constitutional Court to officially construe its own rulings (Article 61).

The Constitutional Court has held that, although the powers of the Constitutional Court to construe its own rulings and other final acts are not expressis verbis established in the Constitution, these powers undoubtedly stem from the Constitution—the entire content of the constitutional legal regulation (inter alia, the constitutional principle of a state under the rule of law); the said powers of the Constitutional Court are implied by the constitutional purpose of the Constitutional Court itself to administer constitutional justice and to guarantee the supremacy of the Constitution in the legal system as well as the constitutional legality (the Constitutional Court’s decisions of 14 March 2006, 29 November 2012, 13 March 2013, and 3 July 2013).

  1. In its acts, the Constitutional Court has held on more than one occasion that the purpose of the institute of the construction of its rulings and other final acts is to disclose the content and meaning of certain provisions of a ruling or another final act of the Constitutional Court more broadly and in more detail, if it is necessary, in order that the proper execution of that ruling or another final act of the Constitutional Court would be ensured and the said ruling or another final act of the Constitutional Court would be followed (inter alia, the Constitutional Court’s decisions of 22 December 2010, 5 September 2011, and 29 November 2012). The construction of a ruling or another final act of the Constitutional Court might be significant not only in seeking to ensure the proper implementation of the decision consolidated in the operative part of the act but also to ensure that proper consideration be given in the law-making process to the official constitutional doctrine formulated by the Constitutional Court (the Constitutional Court’s decision of 29 November 2012). In its decision of 29 November 2012, the Constitutional Court emphasised that the purpose of the construction of a ruling or another final act of the Constitutional Court is to explain more comprehensively those provisions and formulations of the Constitutional Court’s ruling or its another final act due to the meaning of which there have been some uncertainties but not to explain how to implement the said ruling or another final act in a concrete situation, inter alia, in the area of the application of law.
  2. The Constitutional Court has emphasised on more than one occasion that the consideration of a petition requesting the construction of a ruling or another final act of the Constitutional Court does not imply any new constitutional justice case.

In this context it should be noted that, under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing the content of the ruling. The Constitutional Court has held on more than one occasion that the said provision, among other things, means that, while construing its ruling, the Constitutional Court may not construe the content of the ruling in such a way that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, and the arguments and reasons upon which that ruling of the Constitutional Court is based would be changed. A ruling of the Constitutional Court is integral, and all its constituent parts are interrelated; the operative (resolving) part of a ruling is based upon the arguments of the reasoning part; while construing its ruling, the Constitutional Court is bound by the content of both the operative part and reasoning part of its ruling. When construing Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court has stated in its acts on more than one occasion that the Constitutional Court may not construe what it did not investigate in the constitutional justice case in which the ruling, the construction of which is requested, was adopted; this would imply a matter for a separate investigation.

  1. In its decision of 13 March 2013, the Constitutional Court held that the Constitutional Court is a legal but not political institution; the Constitutional Court decides legal questions falling within its competence under the Constitution, exclusively by invoking legal arguments, inter alia, the official constitutional doctrine and precedents that have already been formulated by it; the construction of the final acts of the Constitutional Court may not be determined by accidental (from the legal point of view) factors (for example, change in the composition of the Constitutional Court); the Constitutional Court may not construe its final acts by following, inter alia, the arguments of political expediency, the documents of political parties or different public organisations, the opinions of and assessments by politicians, political science or sociological research, or the results of public opinion polls; otherwise, preconditions for doubting the impartiality of the Constitutional Court might emerge and a threat to the independence of the Constitutional Court and the stability of the Constitution itself, inter alia, the official constitutional doctrine, would arise.
  2. It should also be noted that the uniformity and continuity of the official constitutional doctrine imply the necessity to construe each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context as well as of other provisions (either explicit or implicit) of the Constitution that are related to the provision (provisions) of the Constitution in the course of the construction of which the relevant provision of the official constitutional doctrine was formulated in a certain ruling or another final act of the Constitutional Court. As the Constitutional Court has held on more than one occasion, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the relevant ruling, another final act of the Constitutional Court, or in other acts of the Constitutional Court, as well as with other provisions (either explicit or implicit) of the Constitution (inter alia, the Constitutional Court’s decisions of 6 December 2007, 28 October 2009, 13 March 2013, and 3 July 2013).
  3. It has also been held in the jurisprudence of the Constitutional Court more than once that the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on the issues falling within its competence under the Constitution are final and not subject to appeal, also means that the Constitutional Court’s rulings, conclusions, and decisions by which a constitutional justice case is finished, i.e. the final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments, and organisations, as well as officials and citizens, including the Constitutional Court itself: the final acts of the Constitutional Court are obligatory to the Constitutional Court itself, and they restrict the Constitutional Court from the aspect that it may not change them or review them if there are no constitutional grounds for doing so.
  4. The Constitutional Court has also stated on more than one occasion that, in the course of the official construction (subsequent to a petition of the parties to the case or other institutions and individuals, to whom the respective Constitutional Court’s ruling was sent, also on the initiative of the Constitutional Court itself) of rulings and other final acts of the Constitutional Court, the official constitutional doctrine is not corrected; the correction of the official constitutional doctrine (which, undoubtedly, must always have a constitutional basis and be explicitly reasoned in an appropriate act of the Constitutional Court) should be related to the consideration of new constitutional justice cases and creation of new precedents therein by the Constitutional Court but not to the official construction of the provisions of the rulings or other final acts of the Constitutional Court (the Constitutional Court’s decisions of 6 December 2007, 1 February 2008, 4 July 2008, 15 January 2009, 15 May 2009, 28 October 2009, 6 November 2009, 18 December 2009, and 13 March 2013).

II

  1. The President of the Republic, the petitioner, requests the Constitutional Court to construe the provisions of the official constitutional doctrine that are related to the independence of prosecutors as well as to the grounds and procedure for the dismissal of the Prosecutor General from office. It should be noted that the said provisions of the official constitutional doctrine, the construction of which is requested by the petitioner, were formulated over the course of time during which Article 118 (wording of 25 October 1992) of the Constitution and, subsequently, Article 118 (wording of 20 March 2003) of the Constitution were valid.
  2. Article 118 (wording of 25 October 1992) of the Constitution prescribed:

“In criminal cases prosecutors shall uphold charges on behalf of the State, shall carry out criminal prosecution, and shall supervise the activities of the interrogative bodies.

Preliminary interrogation shall be conducted by interrogators.

The procedure for the appointment of prosecutors and interrogators as well as their status shall be established by law.”

  1. On 20 March 2003, the Seimas adopted the Law on Altering Article 118 of the Constitution of the Republic of Lithuania, by means of Article 1 of which, Article 118 (wording of 25 October 1992) of the Constitution was amended. That law came into force on 21 April 2003. Article 118 (wording of 20 March 2003) of the Constitution prescribes:

“Pre-trial investigation shall be organised and directed, and charges on behalf of the State in criminal cases shall be upheld by the prosecutor.

In cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the State.

When performing his functions, the prosecutor shall be independent and shall obey only the law.

The Prosecutor’s Office of the Republic of Lithuania shall be the Office of the Prosecutor General and territorial prosecutor’s offices.

The Prosecutor General shall be appointed and dismissed by the President of the Republic upon the assent of the Seimas.

The procedure for the appointment and dismissal of prosecutors and their status shall be established by law.”

  1. In its ruling of 13 May 2004, the Constitutional Court held that, upon the entry into force of the Law on Altering Article 118 of the Constitution, the Constitutional Court formulates the official constitutional doctrine on the basis of the new wording set forth in Article 118 of the Constitution; under the Constitution, in each case, after an amendment to the Constitution comes into force, the Constitutional Court alone has the powers to hold that, in order to construe the Constitution, it is no longer permitted (and to what extent) to invoke the previous Constitutional Court’s doctrine formulated on the basis of the former provisions of the Constitution.

The same should apply to the constitutional doctrinal statements specifying the legal status of prosecutors, their relations with pre-trial investigation officials, as well as their powers in a court.

4.1. In its ruling of 6 December 1995, while construing the provisions of Article 118 (wording of 25 October 1992) of the Constitution, the Constitutional Court held that, under the Constitution, the prosecutors were a constituent part of the judiciary, therefore, the principles defining the independence of courts were equally applicable to them, but only with due consideration of the approach specified in the Constitution; the principal functions of prosecutors and interrogators were prescribed in Chapter IX “The Court” of the Constitution, where prosecutors and interrogators were treated as a constituent part of the judiciary; thus, the guarantees of the independence of the judiciary established by law applied to them when they were conducting legal proceedings; prosecutors or interrogators were independent, and they acted independently in upholding public charges, carrying out criminal prosecution, controlling the activities of the interrogative bodies, and conducting preliminary interrogations; while making decisions in the said cases, prosecutors or interrogators obeyed only the law, and there could be no interference with their activities.

4.2. In its ruling of 13 May 2004, while construing the provisions of Article 118 (wording of 20 March 2003) of the Constitution, the Constitutional Court pointed out that, upon the entry into force of the Law on Altering Article 118 of the Constitution, Article 118 of the Constitution provides for an essentially different constitutional institute of the prosecutor if compared to the one previously valid: it has consolidated the constitutional status of prosecutors that is different from the one previously established; it has consolidated an institution—the Prosecutor’s Office of the Republic of Lithuania—that was not identified in the Constitution previously; it has established the system of the Prosecutor’s Office of the Republic of Lithuania, composed of the Office of the Prosecutor General and territorial prosecutor’s offices; it has consolidated the office of the Prosecutor General of the Republic of Lithuania, the procedure for the appointment and dismissal of this official, etc. In that ruling, it was also held that it is no longer permitted to invoke the constitutional doctrinal provision, as consolidated in Article 118 of the Constitution in its previous wording, that prosecutors must be regarded as a constituent part of the judicial power.

4.3. It should be noted that, having compared the functions of prosecutors as provided for in Article 118 (wording of 25 October 1992) of the Constitution with the corresponding functions as established in Article 118 (wording of 20 March 2003) of the Constitution, the conclusion should be drawn that, although the wordings used to define the constitutional functions of prosecutors in Paragraph 1 (wording of 25 October 1992) and Paragraph 1 (wording of 20 March 2003) of Article 118 of the Constitution are different, these functions have remained the same in substance. For instance, Paragraph 1 (wording of 20 March 2003) of Article 118 of the Constitution still contains one of the most important functions of prosecutors, i.e. that prosecutors uphold charges on behalf of the State in criminal cases. While comparing other functions of prosecutors laid down in Paragraph 1 (wordings of 20 March 2003 and 25 October 1992) of Article 118 of the Constitution, it should be stated that the organisation and direction of pre-trial investigation, according to their character, correspond to the conduct of criminal prosecution and supervision over the activities of institutions investigating criminal deeds (interrogative bodies).

In addition, Paragraph 2 of Article 118 (wording of 20 March 2003) of the Constitution consolidates such a function of prosecutors that was not explicitly consolidated in Article 118 in its wording of 25 October 1992: in the cases established by law, prosecutors defend the rights and legitimate interests of the person, society, and the state. It should be noted that, due to the explicit consolidation of the said function in the Constitution, the essence of the constitutional functions of prosecutors has not changed.

It should also be noted that Paragraph 3 of Article 118 (wording of 20 March 2003) of the Constitution expressis verbis consolidates the principle of the independence of prosecutors. Under the Constitution, prosecutors, when performing their functions, are independent and obey only the law. Consequently, prosecutors, while performing their functions, act independently, and the institutions of the legislative and executive power, inter alia, the Seimas and the President of the Republic, who participate in the process of appointing and dismissing the Prosecutor General, may not interfere with the performance of the functions of prosecutors, give prosecutors any obligatory instructions as to the performance of their functions, or control the work of prosecutors while they are performing their functions.

4.4. It has been mentioned that the uniformity and continuity of the official constitutional doctrine imply the necessity to construe each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context. Thus, in order to construe the official constitutional doctrinal provisions on the independence of prosecutors as well as on the procedure and grounds for the dismissal of the Prosecutor General from office, the construction of which is requested by the President of the Republic, the petitioner, account should be taken of the altered constitutional regulation governing the institute of the prosecutor as well as of the constitutional requirement that the official constitutional doctrine must be formulated on the basis of Article 118 of the Constitution as set forth in its new wording.

III

  1. It has been mentioned that the President of the Republic, the petitioner, requests an investigation into whether:

– the provisions “[t]o discharge their functions properly, prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution” of the second paragraph of Item 4 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003,

– as well as the provisions “the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases” of the sixth paragraph of Item 4.5 of Section II of the reasoning part of the Constitutional Court’s ruling of 13 May 2004 and of the third paragraph of Item 15.3 of Section I of the reasoning part of the Constitutional Court’s ruling of 16 January 2006,

inter alia, may be construed as meaning that it is not permitted to establish that the Prosecutor General is under a duty to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, since this would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, as well as that, once the said duty were established for the Prosecutor General to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, this would restrict the independence of prosecutors in performing their functions provided for in the Constitution.

  1. In its ruling of 24 January 2003, the construction of the provisions of which is requested by the petitioner, the Constitutional Court investigated the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Republic of Lithuania’s Law Amending Article 11 of the Law on the Prosecutor’s Office with the Constitution. Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office prescribed that, upon an amendment to the procedure for the appointment of the Prosecutor General, where the law provides for different entities who appoint the Prosecutor General, the Prosecutor General is dismissed from office according to the procedure established by laws; Article 2 of the 28 November 2000 Law Amending Article 11 of the Law on the Prosecutor’s Office prescribed: “From the day of the entry into force of this Law, the powers of the Prosecutor General appointed by the Seimas of the Republic of Lithuania shall be terminated and he or she shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by the laws of the Republic of Lithuania.”

The provisions of the Constitutional Court’s ruling of 24 January 2003, the construction of which is requested by the petitioner, are part of the larger body of the text set forth in Section II of the reasoning part of the said ruling, where, inter alia, it is stated:

“2. The constitutional principle of a state under the rule of law is a universal one, upon which the whole Lithuanian legal system as well as the Constitution of the Republic of Lithuania itself is based. The content of the principle of a state under the rule of law is disclosed in various provisions of the Constitution (the Constitutional Court’s ruling of 23 February 2000).

In addition to other requirements, the principle of a state under the rule of law, which is entrenched in the Constitution, implies the duty of the state to ensure the certainty and stability of any legal regulation as well as the protection of legitimate expectations.

  1. In its ruling of 11 May 1999, the Constitutional Court held that, in a democratic state under the rule of law, officials and institutions must follow law in their activities. Carrying out the functions that are important to society and the state, state institutions and officials must not face any threat if they fulfil their duties without violations of laws. The constitutional principle of a state under the rule of law requires that jurisdictional and other institutions which apply law be impartial and independent, that they seek to establish the objective truth and that they adopt their decisions only on the grounds of law.
  2. The functions of prosecutors are established in Paragraph 1 of Article 118 of the Constitution: ‘In criminal cases prosecutors shall uphold charges on behalf of the State, shall carry out criminal prosecution, and shall supervise the activities of the interrogative bodies.’

To discharge their functions properly, prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution.

An important guarantee of the independence of prosecutors is the provision, established in Paragraph 3 of Article 118 of the Constitution, that the procedure for the appointment of prosecutors and their status shall be established by law. The legislature, while implementing its constitutional powers to establish the entities who appoint and dismiss prosecutors, also to establish the length of the term of the powers of prosecutors, the procedure for their appointment and dismissal, and the grounds for their dismissal, is bound by the Constitution, thus, also by the principle of a state under the rule of law entrenched therein, which implies legal certainty, stability, and the protection of legitimate expectations.”

  1. In its ruling of 13 May 2004, the construction of the provisions of which is requested by the petitioner, the Constitutional Court investigated, inter alia, the compliance of Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions, under which a Provisional Investigation Commission of the Seimas has the right, “upon the coordination with the Office of the Prosecutor General, the State Control, the State Security Department, or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by laws, with a criminal case or other material and documents that are at the disposal of the said bodies”, with the Constitution.

The provisions of the Constitutional Court’s ruling of 13 May 2004, the construction of which is requested by the petitioner, are part of the larger body of the text set forth in Item 4.5 of Section II of the reasoning part of the said ruling, where, inter alia, it is stated:

“Paragraph 1 of Article 118 of the Constitution provides that the prosecutor organises and is in charge of pre-trial investigation as well as pursues charges on behalf of the state in criminal cases; Paragraph 2 of the same article provides that, in the cases established by law, the prosecutor defends the rights and legitimate interests of the person, society, and the state; Paragraph 3 of Article 118 of the Constitution provides that, while discharging their functions, prosecutors are independent and obey only the law. Thus, it needs to be noted that the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases.

The Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held that the principles and norms of the Constitution compose a harmonious system, that no provision of the Constitution may be construed in such a way that the content of another constitutional provision would be distorted or denied, since thereby the essence of the whole constitutional regulation would be distorted and the balance of the values consolidated in the Constitution would be disturbed (the Constitutional Court’s ruling of 3 December 2003). The Constitutional Court has also held that the legislature must reconcile different interests and ensure the balance of constitutional values (the Constitutional Court’s ruling of 24 September 1998).”

  1. In its ruling of 16 January 2006, the construction of the provisions of which is requested by the petitioner, the Constitutional Court investigated the compliance of certain provisions of the Code of Criminal Procedure of the Republic of Lithuania, which regulated the proceedings of the cases of private accusation, with the Constitution.

The provisions of the Constitutional Court’s ruling of 16 January 2006, the construction of which is requested by the petitioner, are part of the larger body of the text set forth in Item 15.3 of Section I of the reasoning part of the said ruling, where, inter alia, it is stated:

“Under the Constitution, no one else but the prosecutor can organise and direct pre-trial investigation (the Constitutional Court’s ruling of 13 May 2004). The provision of Paragraph 1 of Article 118 of the Constitution that pre-trial investigation is organised and directed by the prosecutor obliges the legislature to establish the powers of prosecutors in organising and directing pre-trial investigation. While regulating this, the legislature enjoys rather broad discretion: taking account of the nature, danger (gravity), scale, and other signs of criminal deeds, as well as of other circumstances of importance, the legislature can establish various forms of the organisation and direction of pre-trial investigation, certain powers of prosecutors in this procedure, etc. However, in this case, the legislature is bound by the norms and principles of the Constitution, inter alia, by the obligation, stemming from the Constitution, to ensure the security of each person and the entire society against criminal attempts. From the said provision of Paragraph 1 of Article 118 of the Constitution the duty arises for prosecutors to organise and direct pre-trial investigation in such a manner that objective and comprehensive information would be collected about the criminal deed and the person who is suspected of the commission of this deed, which, inter alia, would create legal preconditions for the court to establish the objective truth in the criminal case and adopt a just decision concerning the guilt of the person accused of the commission of the criminal deed.

Under the Constitution, no one else but the prosecutor may uphold charges on behalf of the state in criminal cases (the Constitutional Court’s ruling of 13 May 2004). In the context of the constitutional justice case at issue, it needs to be noted that the provision of Paragraph 1 of Article 118 of the Constitution that the prosecutor upholds charges on behalf of the state in criminal cases, inter alia, means that, in the course of criminal procedure, charges on behalf of the state are upheld in court and that the upholding of criminal charges on behalf of the state is a function of the state that can be implemented only through certain officials—prosecutors. However, the said provision of the Constitution does not prevent the legislature, when it takes account of whose interests have been violated, of the nature, danger (gravity), scale, and other signs of the criminal deeds, the will of the victim, as well as of other circumstances of importance, etc., to establish such legal regulation whereby, in certain cases provided for by law, charges on behalf of the state are not upheld during the consideration of the case in court. However, every case when it is established that charges on behalf of the state are not upheld must be constitutionally grounded, inter alia, no preconditions may be created that would unreasonably burden the implementation of the constitutional rights and freedoms of the person or deny them altogether. Thus, under the Constitution, the legislator can establish such legal regulation whereby private persons (their representatives) but not prosecutors uphold charges in certain criminal cases; in itself, such legal regulation does not create any preconditions for violating the rights of the person to judicial defence. However, there may not be any such legal situations in which the prosecutor would not have the duty to uphold charges on behalf of the state in the cases where private persons (their representatives), when upholding charges in a criminal case, are not able to efficiently defend their rights and legitimate interests (or those of the persons they are representing).

The Constitutional Court has noted that the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases (the Constitutional Court’s ruling of 13 May 2004). However, the independence of prosecutors, as consolidated in the Constitution, may not be interpreted as meaning that, purportedly, during the criminal procedure, prosecutors are not obliged to follow laws and/or the instructions of the court (the judge).”

  1. The quoted provisions of the aforementioned rulings of the Constitutional Court present the official construction of the regulation laid down in Article 118 of the Constitution. The provisions of the official constitutional doctrine concerning the independence of prosecutors are in all cases directly related to the performance of the functions established in the Constitution.

5.1. In this context it should be noted that, although, as mentioned before, Article 118 (wording of 25 October 1992) of the Constitution established different functions of the prosecutor if compared to Article 118 (wording of 20 March 2003) of the Constitution, and Article 118 in its previous wording did not expressis verbis consolidate the principle of the independence of the prosecutor (as mentioned before, until the entry into force of Article 118 (wording of 20 March 2003) of the Constitution, in the official constitutional doctrine, this principle was regarded as stemming from the principle of the independence of courts), the substance of the provisions of the official constitutional doctrine formulated regarding the principle of the independence of the prosecutor prior to and after the entry into force of Article 118 (wording of 20 March 2003) of the Constitution is the same: when performing their functions, prosecutors are independent and obey only the law.

5.2. It should also be noted that, in its rulings of 13 May 2004, 16 January 2006, and 7 April 2011, the Constitutional Court held the following: “Under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, which is not categorised as one of the institutions that execute state power and are indicated in Paragraph 1 of Article 5 of the Constitution, and it is not a constituent part of the judicial power.”

  1. It has been mentioned that the President of the Republic, the petitioner, requests the Constitutional Court to construe whether certain provisions of the Constitutional Court’s rulings of 24 January 2003, 13 May 2004, and 16 January 2006, inter alia, may be construed as meaning that it is not permitted to establish that the Prosecutor General is under a duty to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, since this would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, as well as that, once the said duty were established for the Prosecutor General to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, this would restrict the independence of prosecutors in performing their functions provided for in the Constitution.

Thus, the petitioner requests a construction of an aspect of the constitutional status of the state official referred to in Paragraph 5 of Article 118 (wording of 20 March 2003) of the Constitution, i.e., that of the accountability of the Prosecutor General.

6.1. In this context it should be mentioned that, in its decision of 21 November 2006, the Constitutional Court held:

– the Constitution consolidates parliamentary democracy; however, parliamentary democracy is not “the convent rule”, it is not a system where the parliament directly organises the work of other state or municipal institutions or may, at any time, interfere with the activities of any state or municipal institutions (their officials), which implement public power; nor is parliamentary democracy a system where the parliament, at the slightest pretext, may exert control over any decisions of such institutions (their officials), initiate the application of sanctions against certain persons, let alone adopt decisions by itself for the state or municipal institutions (their officials) that enjoy particular competence, i.e., adopt such decisions that can be adopted only by the state institutions (their officials) that have particular competence, for example, courts, prosecutors, the State Control, institutions of pre-trial investigation, or entities of the operational activity provided for in laws;

– the model of parliamentary democracy consolidated in the Constitution is rational and moderate; it is not exclusively based upon the control exercised by the parliament or upon inter-institutional checks and balances; in parliamentary democracy, inter-functional partnership, which is based upon, inter alia, trust, plays a role of no less importance. It has been held in the Constitutional Court’s acts that, when the general functions and tasks of the state are being performed, there exists inter-functional partnership among state institutions, as well as reciprocal control and balance (the Constitutional Court’s rulings of 10 January 1998, 21 April 1998, and 9 May 2006); the Constitutional Court has also held that “the interaction of state powers may not be treated as their conflict 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 the mechanisms of the opposition of powers” (the Constitutional Court’s ruling of 9 May 2006);

– a different interpretation of the provisions of the Constitution that consolidate the control function performed by the Seimas (inter alia, the provisions substantiating the possibility of forming the provisional investigation commissions of the Seimas) would unavoidably deny the constitutional principles of responsible governance, the separation of powers, a state under the rule of law, and those of democracy, as well as the striving for an open, harmonious, and just civil society, which is proclaimed in the Preamble to the Constitution, and it would create preconditions for instability in the governance of the state and in the management of public affairs, as well as preconditions for the violation of the rights and freedoms as well as the legitimate interests and legitimate expectations or the person and other values consolidated in and defended and protected by the Constitution.

6.2. The Constitutional Court has also held that the constitutional requirement that the power of the State of Lithuania should be organised in a democratic way and that the democratic political regime must be in place in the country is inseparable from the provision of Paragraph 3 of Article 5 of the Constitution that state institutions serve the people as well as from the provision of Paragraph 2 of the same article that the scope of power is limited by the Constitution. The nature of the democratic institutes of power is that all persons who implement political will of the people are controlled in varied forms, so that this will would not be distorted (the Constitutional Court’s decision of 29 May 1996 and its ruling of 13 December 2004).

6.3. In its ruling of 1 July 2004 and conclusion of 5 November 2004, the Constitutional Court held that the Constitution consolidates the principle of responsible governance; the responsibility of the authorities to society is a principle of a state under the rule of law, which is established in the Constitution, by providing that state institutions serve the people, while citizens have the right to run the country either directly or through democratically elected representatives, to criticise the work of state institutions or that of their officials, and to lodge complaints against their decisions, also by guaranteeing citizens the possibility of defending their rights in court and the right of petition, as well as by regulating the procedure for the investigation of the appeals and complaints of citizens, etc. (the Constitutional Court’s ruling of 11 May 1999 and its conclusion of 5 November 2004)

  1. While construing whether certain provisions of the Constitutional Court’s rulings of 24 January 2003, 13 May 2004, and 16 January 2006, as indicated by the petitioner, inter alia, may be construed as meaning that it is not permitted to establish that the Prosecutor General is under a duty to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, since this would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, as well as that, once the said duty were established for the Prosecutor General to account for the activities of the Prosecutor’s Office of the Republic of Lithuania to the legislative and executive powers, this would restrict the independence of prosecutors in performing their functions provided for in the Constitution, it should be noted that, as mentioned before, under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, which is not categorised as one of the institutions that execute state power and are indicated in Paragraph 1 of Article 5 of the Constitution, and it is not a constituent part of the judicial power.

7.1. It should be noted that, as mentioned before, under the Constitution, prosecutors, when performing their functions, are independent and obey only the law; consequently, when prosecutors are performing their functions, the institutions of legislative and executive power, inter alia, the Seimas and the President of the Republic, who participate in the process of appointing and dismissing the Prosecutor General, may not interfere with the performance of the functions of prosecutors, give prosecutors any obligatory instructions as to the performance of their functions, or control the work of prosecutors while they are performing their functions.

Thus, under the Constitution, it is not permitted to establish any such legal regulation that would deny or restrict the independence of prosecutors in organising and directing pre-trial investigation, in upholding charges on behalf of the state in criminal cases, or in defending the rights and legitimate interests of a person, society, and the state.

7.2. The Constitutional Court has held that the principles and norms of the Constitution compose a harmonious system, as well as that no provision of the Constitution may be construed in such a way that the content of another constitutional provision would be distorted or denied, since thereby the essence of the whole constitutional regulation would be distorted and the balance of the values consolidated in the Constitution would be disturbed; the legislature must reconcile different interests and ensure the balance of constitutional values. It has been mentioned that the Constitution consolidates the parliamentary democracy; however, parliamentary democracy is not a system where the parliament directly organises the work of other state or municipal institutions or may, at any time, interfere with the activities of any state or municipal institutions (their officials), which implement public power; nor is parliamentary democracy a system where the parliament may, at the slightest pretext, exert control over any decisions of the said institutions (their officials) or initiate the application of sanctions against certain persons.

In this context it should be noted that, as mentioned before, under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, which is not categorised as one of the institutions that execute state power and are indicated in Paragraph 1 of Article 5 of the Constitution; under Paragraph 4 (wording of 20 March 2003) of Article 118 of the Constitution, the Prosecutor’s Office of the Republic of Lithuania comprises the Office of the Prosecutor General and territorial prosecutor’s offices; under Paragraph 5 of Article 118 of the Constitution, the Prosecutor General is appointed and dismissed by the President of the Republic upon the assent of the Seimas. Thus, directing the Prosecutor’s Office of the Republic of Lithuania as well as organising its activity is a constitutional function of the Prosecutor General.

7.3. Consequently, under the Constitution, the Seimas is not permitted to establish any such legal regulation that would oblige prosecutors to submit the accounts of the performance of their constitutional functions to the legislative or executive powers, inter alia, any such legal regulation which would oblige the Prosecutor General to submit the said accounts of the activity of the Prosecutor’s Office of the Republic of Lithuania, which would subsequently need to be approved by the Seimas, the President of the Republic, or the Government. The establishment of the aforesaid duty would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, and the restriction of the independence of prosecutors in performing the functions provided for in the Constitution.

7.4. It has been mentioned that the constitutional requirement that the power of the State of Lithuania should be organised in a democratic way and that the democratic political regime must be in place in the country is inseparable from the provision of Paragraph 3 of Article 5 of the Constitution that state institutions serve the people as well as from the provision of Paragraph 2 of the same article that the scope of power is limited by the Constitution.

The principle of the balance of the values consolidated in the Constitution and the duty of the legislature to reconcile different interests and to ensure the balance of constitutional values oblige the legislature to align the constitutional provision that state institutions serve the people with the constitutional principle of the independence of prosecutors. The alignment of these constitutional values would be ensured if the Prosecutor General were obliged by law to submit to society, as well as the Seimas and the President of the Republic, who participate in the process of the appointment and dismissal of the Prosecutor General, information (public reports) about the implementation of the priorities of the penal policy, the defence of the public interest, the organisation of the work of the Prosecutor’s Office, the directions of the activity of the Prosecutor’s Office, the organisation of cooperation between the Lithuanian and foreign establishments of pre-trial investigation or other institutions, time limits for the investigation of criminal deeds, certain problems arising in the course of the work of the Prosecutor’s Office, etc.

7.5. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “[t]o discharge their functions properly, prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution” of the second paragraph of Item 4 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003, as well as the provisions “the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases” of the sixth paragraph of Item 4.5 of Section II of the reasoning part of the Constitutional Court’s ruling of 13 May 2004 and of the third paragraph of Item 15.3 of Section I of the reasoning part of the Constitutional Court’s ruling of 16 January 2006, inter alia, mean that it is not permitted to establish any such legal regulation that would oblige prosecutors to submit the accounts of the performance of their constitutional functions to the legislative and executive powers, inter alia, any such legal regulation that would oblige the Prosecutor General to submit the said accounts of the activity of the Prosecutor’s Office of the Republic of Lithuania, which would subsequently need to be approved by the Seimas, the President of the Republic, or the Government; the establishment of the aforesaid duty would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, and the restriction of the independence of prosecutors in performing the functions provided for in the Constitution.

IV

  1. It has been mentioned that the President of the Republic, the petitioner, requests an investigation into whether:

– the provisions “<...> the legislature has the powers <...> to establish the term of the powers of prosecutors as well as the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also by the principle of a state under the rule of law, entrenched therein, which implies the legal certainty, stability, and the protection of legitimate expectations. After having established the term of the powers of the Prosecutor General, the legislature does not have the right to provide for any grounds for the dismissal of the Prosecutor General from office before the expiry of the term of the powers of the Prosecutor General. Under the Constitution, the legislature may establish only such grounds for the dismissal of the Prosecutor General from office before the expiry of his or her powers due to which the Prosecutor General may not hold office on the whole (e.g., due to such legal facts as the age provided for in the law, transference to another place of work, or the loss of the citizenship of the Republic of Lithuania)” of the first paragraph of Item 6 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003, as well as the provisions of Item 7 of the reasoning part of the Constitutional Court’s ruling of 30 March 2000 that Article 76 of the Constitution, under which the structure and procedure of the activities of the Seimas are established by the Statute of the Seimas and the Statute of the Seimas has the power of law, lays down “[a] blanket norm <...> which permits the Seimas to establish, by itself, its structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural sub-units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas”,

inter alia, may be construed as meaning that the grounds, as well as the procedure or separate elements of the procedure, for the dismissal of the Prosecutor General (inter alia, as to which institution or official has the right to participate in submitting proposals and adopting decisions related to the dismissal of the Prosecutor General, as well as in what cases the question of the dismissal of the Prosecutor General may be considered) may be established not only in a law but also in the Statute of the Seimas, which has the power of law, or in a legal act adopted by the Seimas for the implementation of a particular law.

  1. It has been mentioned that, in its ruling of 24 January 2003, the Constitutional Court investigated the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law Amending Article 11 of the Law on the Prosecutor’s Office with the Constitution.

2.1. In Item 6 of Section II of the reasoning part of the said ruling, the construction of the provision of which is requested by the petitioner, it is stated: “The provision of Paragraph 3 of Article 118 of the Constitution that the procedure for the appointment of prosecutors and their status shall be established by law, inter alia, means that the legislature has the powers to establish by law the entities who appoint and dismiss prosecutors, also, to establish the term of the powers of prosecutors as well as the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also by the principle of a state under the rule of law, entrenched therein, which implies the legal certainty, stability, and the protection of legitimate expectations. After having established the term of the powers of the Prosecutor General, the legislature does not have the right to provide for any grounds for the dismissal of the Prosecutor General from office before the expiry of the term of the powers of the Prosecutor General. Under the Constitution, the legislature may establish only such grounds for the dismissal of the Prosecutor General from office before the expiry of his or her powers due to which the Prosecutor General may not hold office on the whole (e.g., due to such legal facts as the age provided for in the law, transference to another place of work, or the loss of the citizenship of the Republic of Lithuania).”

2.2. It should be noted that, in its ruling of 24 January 2003, the Constitutional Court construed the legal regulation established in Article 118 (wording of 25 October 1992) of the Constitution.

2.3. In that ruling, it has been mentioned that, in each case, after an amendment to the Constitution comes into force, the Constitutional Court alone has the powers to hold that, in order to construe the Constitution, it is no longer permitted (and to what extent) to invoke the previous Constitutional Court’s doctrine formulated on the basis of the former provisions of the Constitution.

2.4. It should be noted that Article 118 (wording of 25 October 1992) of the Constitution did not provide for any subjects appointing and dismissing the Prosecutor General; these subjects have been established in Paragraph 4 of Article 118 (wording of 20 March 2003) of the Constitution: the Prosecutor General is appointed and dismissed by the President of the Republic upon the assent of the Seimas.

Thus, it should be held that the Constitutional Court’s doctrine, as formulated on the basis of Article 118 (wording of 25 October 1992) of the Constitution, may no longer be invoked as regards the subjects appointing and dismissing the Prosecutor General.

  1. In Item 7 of the reasoning part of the Constitutional Court’s ruling of 30 March 2000, the construction of the provision of which is requested by the petitioner, inter alia, it is stated:

“Article 76 of the Constitution provides that ‘[t]he structure and procedure of the activities of the Seimas shall be determined by the Statute of the Seimas. The Statute of the Seimas shall have the power of law’.

A blanket norm is set down in this article of the Constitution, which permits the Seimas to establish, by itself, its structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural sub-units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas. Under Article 76 of the Constitution, this must be established in the Statute of the Seimas, which has the power of law.”

  1. It has been mentioned in this decision that the uniformity and continuity of the official constitutional doctrine imply the necessity to construe each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context as well as of other provisions (either explicit or implicit) of the Constitution that are related with the provision (provisions) of the Constitution in the course of the construction of which the relevant provision of the official constitutional doctrine was formulated in a certain ruling or another final act of the Constitutional Court; no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with other official constitutional doctrinal provisions set forth in the same ruling, another final act of the Constitutional Court, or in other acts of the Constitutional Court, as well as with other provisions (either explicit or implicit) of the Constitution.

4.1. The provisions of the Constitutional Court’s rulings of 24 January 2003 and 30 March 2000, the construction of which is requested by the President of the Republic, the petitioner, should be construed in the context of the official constitutional doctrine formulated by the Constitutional Court when construing the content of Article 76 of the Constitution. The Constitutional Court, when construing Article 76 of the Constitution, has held:

– this article of the Constitution provides that the Seimas has the right to determine its structure and the procedure for its work by itself; Article 76 of the Constitution also provides for the form of the legal act regulating the internal organisation of the Seimas and the procedure for its work, which is the Statute of the Seimas; under the Constitution, the Statute of the Seimas has the power of law (the Constitutional Court’s ruling of 21 December 1999);

– the establishment of the procedure for the work of the Seimas also includes the regulation of law-making procedure (the Constitutional Court’s rulings of 18 October 2000, 14 January 2002, 19 January 2005, and 15 February 2013);

– the fact that, under the Constitution, the structure of the Seimas and the procedure for its work are established by the Statute of the Seimas, as well as that the Statute of the Seimas is signed by the Speaker of the Seimas, inter alia, means that the Seimas, while paying heed to the Constitution, has the right to decide, by itself, the questions of the formation of its structural sub-units and those of their competence and organisation of their work, also that no other state institution may interfere with these constitutional powers of the Seimas (the Constitutional Court’s ruling of 13 May 2004).

4.2. The provisions of the Constitutional Court’s rulings of 24 January 2003 and 30 March 2000, the construction of which is requested by the petitioner, should be construed in the context of Article 75 of the Constitution, under which the officials appointed or elected by the Seimas, with the exception of the persons specified in Article 74 of the Constitution, are dismissed from office when the Seimas expresses no confidence in them by a majority vote of all the members of the Seimas.

The Constitutional Court has held that the said article of the Constitution establishes the right of the Seimas to dismiss from office those officials who have been appointed or elected by the Seimas, with the exception of the persons specified in Article 74 of the Constitution; this is done by following a special parliamentary procedure entailing the submission of a motion of no confidence; no confidence is expressed by a majority vote of all the members of the Seimas; the institute of an expression of no confidence is not only one of the means of the parliamentary control carried out by the Seimas but also an important guarantee of the activity of the officials appointed or elected by the Seimas, since such officials, provided there are no grounds due to which they may not hold office on the whole, may be dismissed from office prior to the expiry of the term of their powers in the cases where more than half of all the members of the Seimas vote in favour of no confidence; a motion of no confidence is a ground for the dismissal of an official appointed or elected by the Seimas from office, which must be linked to the assessment of the activity of the official concerned; therefore, the regulation of the procedure for the parliamentary expression of no confidence must be such that would ensure a proper legal process, which, inter alia, means that officials against whom no confidence is expressed should have a real opportunity to present to the Seimas their explanations and to counter, at the sitting of the Seimas, all the arguments upon which the no confidence is grounded (the Constitutional Court’s rulings of 24 January 2003 and 20 February 2013).

4.3. The provisions of the Constitutional Court’s rulings of 24 January 2003 and 30 March 2000, the construction of which is requested by the petitioner, should also be construed in the context of Article 67 of the Constitution, which establishes the powers and functions of the Seimas. The Constitutional Court, when construing the powers of the Seimas, has held:

– the Seimas is the representation of the nation; the constitutional nature of the Seimas, as the representation of the nation, determines its special place in the system of the institutions of state power, its functions, and its powers necessary in order to perform these functions (inter alia, the Constitutional Court’s rulings of 13 May 2004, 1 July 2004, 4 April 2006, and 13 May 2010 and its decision of 15 January 2009);

– while implementing its constitutional powers, the Seimas performs the classical functions of the parliament of a democratic state under the rule of law: the Seimas passes laws (the legislative function), carries out the parliamentary control over executive and other state institutions (save courts) (the control function), establishes state institutions, appoints and dismisses their heads and other state officials (the founding function), approves the state budget and supervises the execution thereof (the budgetary function), etc. (inter alia, the Constitutional Court’s rulings of 13 May 2004, 1 July 2004, 4 April 2006, and 13 May 2010 and its 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 legislature and other law-making entities may not establish any such legal regulation that would deny the said constitutional functions of the Seimas or would restrict the possibilities of performing them, since thereby the Seimas, the representation of the nation, would be hindered from effective functioning in the interests of the nation and the State of Lithuania (the Constitutional Court’s rulings of 13 May 2004, 4 April 2006, and 13 May 2010);

– legal acts must provide for such a structure of the Seimas and procedure for its work, define such relations of the Seimas with other state institutions, and consolidate such a legal status of a member of the Seimas that would enable the Seimas, the representation of the nation, to perform its constitutional functions and would make it possible for the members of the Seimas, as the representatives of the nation, while they are in office and follow the Constitution, the interests of the state, and their own consciences, to execute their constitutional powers in an uninterrupted manner without being restricted by any mandates (the Constitutional Court’s ruling of 4 April 2006);

– in the course of making laws and performing other functions, the Seimas, as well as any member of the Seimas, is bound by the Constitution, constitutional laws, and laws, in addition to the Statute of the Seimas, which has the power of law (the Constitutional Court’s ruling of 4 April 2006 and its decision of 15 May 2009);

– the powers of the Seimas may be established and are established not only in the Constitution but also in laws; the fact that, in some cases, certain powers of the Seimas consolidated in the Constitution may be specified in laws in a more concrete manner is directly indicated in the Constitution; the Seimas, as the representation of the nation, also has the right to establish, by means of a law, such its powers that are not expressis verbis indicated in the Constitution, but which, however, are designed for the implementation of the constitutional functions of the Seimas; in implementing its right, as directly established in the Constitution, to specify its certain constitutional powers in a more concrete manner by means of a law, as well as in establishing, by means of a law, its powers that are not expressis verbis indicated in the Constitution, the Seimas is bound by the Constitution (the Constitutional Court’s rulings of 13 May 2004 and 4 April 2006).

  1. While construing whether the provisions of the Constitutional Court’s rulings of 24 January 2003 and 30 March 2000, as indicated by the petitioner, mean, inter alia, that the grounds, as well as the procedure or separate elements of the procedure, for the dismissal of the Prosecutor General (inter alia, as to which institution or official has the right to participate in submitting proposals and adopting decisions related to the dismissal of the Prosecutor General, as well as in what cases the question of the dismissal of the Prosecutor General may be considered) may be established not only in a law but also in the Statute of the Seimas, which has the power of law, or in a legal act adopted by the Seimas for the implementation of a particular law, it should be noted that Paragraph 6 of Article 118 (wording of 20 March 2003) of the Constitution stipulates that the procedure for the appointment and dismissal of prosecutors and their status are established by means of a law.

Consequently, under the Constitution, the procedure for the appointment and dismissal of the Prosecutor General may be established exclusively in a law.

In addition, Paragraph 5 of Article 118 (wording of 20 March 2003) of the Constitution provides that the Prosecutor General is appointed and dismissed by the President of the Republic upon the assent of the Seimas.

Consequently, the law establishing the procedure for the appointment and dismissal of the Prosecutor General must provide that the sole subject appointing and dismissing the Prosecutor General is the President of the Republic, who may act so upon the assent of the Seimas.

5.1. It has been mentioned that, under Article 76 of the Constitution, the Seimas has the right to establish, by itself, its structure and the procedure for its work, as well as that the Seimas, while paying heed to the Constitution, has the right to decide, by itself, the questions of the formation of its structural sub-units and those of their competence and organisation of their work, also that no other state institution may interfere with these constitutional powers of the Seimas.

Consequently, the Statute of the Seimas must establish the procedure under which the Seimas decides on whether or not to give its assent to the proposal of the President of the Republic to appoint or dismiss the Prosecutor General. When establishing, in the Statute of the Seimas, under what procedure the Seimas gives, or does not give, its assent to the proposal of the President of the Republic to appoint or dismiss the Prosecutor General, the Seimas may not provide for any grounds for the dismissal of the Prosecutor General from office, since, as mentioned before, the grounds for the dismissal of the Prosecutor General from office may be established exclusively in a law. In addition, it has been mentioned that, under the Constitution, the legislature may establish that the Prosecutor General may be dismissed from office prior to the expiry of the term of his or her powers not on the grounds of whatever character but only on the grounds due to which the Prosecutor General may not hold that office on the whole.

When establishing, in the Statute of the Seimas, the procedure for its work, by following which the Seimas decides whether to give its assent to a candidate for the office of the Prosecutor General, proposed by the President of the Republic, or to the proposal of the President of the Republic to dismiss the Prosecutor General, the Seimas has the powers to establish the procedure under which the Seimas gives, or does not give, its assent to the proposal of the President of the Republic, inter alia, the powers to determine what the time limits and procedure are for the presentation of a proposed candidate at a sitting of the Seimas, what presenting a candidate includes, under what procedure the said candidate is considered at a sitting of the Seimas, what sub-units of the Seimas have the right to consider a candidate, as well as under what procedure voting takes place on whether or not to give an assent to a proposed candidate.

5.2. It should be noted that the Prosecutor General is not an official appointed or elected by the Seimas; the Prosecutor General is appointed to office and dismissed from office by the President of the Republic upon the assent of the Seimas; consequently, the procedure for dismissing an official upon a motion of no confidence, which is provided for in Article 75 of the Constitution and is related to the assessment of the activity of the official concerned, may not be applied to the Prosecutor General.

5.3. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “<...> the legislature has the powers <...> to establish the term of the powers of prosecutors as well as the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also by the principle of a state under the rule of law, entrenched therein, which implies the legal certainty, stability, and the protection of legitimate expectations. After having established the term of the powers of the Prosecutor General, the legislature does not have the right to provide for any grounds for the dismissal of the Prosecutor General from office before the expiry of the term of the powers of the Prosecutor General. Under the Constitution, the legislature may establish only such grounds for the dismissal of the Prosecutor General from office before the expiry of his or her powers due to which the Prosecutor General may not hold office on the whole (e.g., due to such legal facts as the age provided for in the law, transference to another place of work, or the loss of the citizenship of the Republic of Lithuania)” of the first paragraph of Item 6 of Section II of the reasoning part of the Constitutional Court’s ruling of 24 January 2003, as well as the provisions of Item 7 of the reasoning part of the Constitutional Court’s ruling of 30 March 2000 that Article 76 of the Constitution, under which the structure and procedure of the activities of the Seimas are established by the Statute of the Seimas and the Statute of the Seimas has the power of law, lays down “[a] blanket norm <...> which permits the Seimas to establish, by itself, its structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural sub-units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas”, inter alia, mean that the grounds and procedure for the dismissal of the Prosecutor General must be established exclusively in a law; the Statute of the Seimas may establish, inter alia, the procedure under which the Seimas adopts a decision on whether or not to give its assent to the proposal of the President of the Republic to appoint or dismiss the Prosecutor General.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

decision:

  1. To construe that the provisions “[t]o discharge their functions properly, prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution” of the second paragraph of Item 4 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 24 January 2003 (Official Gazette Valstybės žinios, 2003, No. 10-366), as well as the provisions “the independence of prosecutors in organising pre-trial investigation and being in charge of it as well as in upholding charges on behalf of the state in criminal cases is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of prosecutors would otherwise be restricted when they organise pre-trial investigation and direct it and when they uphold charges on behalf of the state in criminal cases” of the sixth paragraph of Item 4.5 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 13 May 2004 (Official Gazette Valstybės žinios, 2004, No. 81-2903) and of the third paragraph of Item 15.3 of Section I of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 16 January 2006 (Official Gazette Valstybės žinios, 2006, No. 7-254), inter alia, mean that it is not permitted to establish any such legal regulation that would oblige prosecutors to submit the accounts of the performance of their constitutional functions to the legislative and executive powers, inter alia, any such legal regulation that would oblige the Prosecutor General to submit the said accounts of the activity of the Prosecutor’s Office of the Republic of Lithuania, which would subsequently need to be approved by the Seimas, the President of the Republic, or the Government; the establishment of the aforesaid duty would mean interference with the activities of prosecutors, who perform the functions provided for in the Constitution, and the restriction of the independence of prosecutors in performing the functions provided for in the Constitution.
  2. To construe that the provisions “<...> the legislature has the powers <...> to establish the term of the powers of prosecutors as well as the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also by the principle of a state under the rule of law, entrenched therein, which implies the legal certainty, stability, and the protection of legitimate expectations. After having established the term of the powers of the Prosecutor General, the legislature does not have the right to provide for any grounds for the dismissal of the Prosecutor General from office before the expiry of the term of the powers of the Prosecutor General. Under the Constitution, the legislature may establish only such grounds for the dismissal of the Prosecutor General from office before the expiry of his or her powers due to which the Prosecutor General may not hold office on the whole (e.g., due to such legal facts as the age provided for in the law, transference to another place of work, or the loss of the citizenship of the Republic of Lithuania)” of the first paragraph of Item 6 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 24 January 2003 (Official Gazette Valstybės žinios, 2003, No. 10-366), as well as the provisions of Item 7 of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 30 March 2000 (Official Gazette Valstybės žinios, 2000, No. 28-784) that Article 76 of the Constitution, under which the structure and procedure of the activities of the Seimas are established by the Statute of the Seimas and the Statute of the Seimas has the power of law, lays down “[a] blanket norm <...> which permits the Seimas to establish, by itself, its structure, the procedure for its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural sub-units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas”, inter alia, mean that the grounds and procedure for the dismissal of the Prosecutor General must be established exclusively in a law; the Statute of the Seimas may establish, inter alia, the procedure under which the Seimas adopts a decision on whether or not to give its assent to the proposal of the President of the Republic to appoint or dismiss the Prosecutor General.

This decision of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                                     Toma Birmontienė
                                                                                                         Gediminas Mesonis
                                                                                                         Vytas Milius
                                                                                                         Egidijus Šileikis
                                                                                                         Algirdas Taminskas
                                                                                                         Romualdas Kęstutis Urbaitis
                                                                                                         Dainius Žalimas