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On dismissing a case

Case No. 43/2009

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE DISMISSAL OF THE CASE SUBSEQUENT TO THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER ITEM 11 (WORDING OF 19 SEPTEMBER 2000) OF PARAGRAPH 2 OF ARTICLE 153 OF THE REPUBLIC OF LITHUANIA LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 19 December 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Šarūnas Jazukevičius, chief specialist of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 November 2012, in a public Court hearing heard constitutional justice case No. 43/2009 subsequent to the petition (No. 1B-54/2009) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether the provision “The proceedings may be resumed on the following grounds: <…> 11) if the legal act on the basis whereof the court disposed of the case has been revoked as illegal” of Paragraph 2 (wording of 19 September 2000) of Article 153 of the Republic of Lithuania Law on the Proceedings of Administrative Cases, insofar as, according to the petitioner, in an administrative case the proceedings are resumed after the Constitutional Court recognises the legal act as being in conflict with the Constitution or laws, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 107 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The petition of the Vilnius Regional Administrative Court, the petitioner, is substantiated by the following arguments.

  1. The provision “The proceedings may be resumed on the following grounds: <…> 11) if the legal act on the basis whereof the court disposed of the case has been revoked as illegal” of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases indirectly consolidates a possibility to resume the proceedings in an administrative case if the Constitutional Court recognises a legal act on the basis whereof the court disposed of the case as being in conflict with the Constitution or laws. However, Paragraph 1 of Article 107 of the Constitution does not grant a possibility to resume the proceedings in the finalised administrative cases after the Constitutional Court adopts a ruling that an act in question (or part thereof) is in conflict with the Constitution.

The petitioner refers inter alia to the following provisions of the official constitutional doctrine formulated in the Constitutional Court’s ruling of 30 December 2003: “The provision of Paragraph 1 of Article 107 of the Constitution, whereby a legal act (or part thereof) may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, means that, until the Constitutional Court has not adopted a decision that the act in question (or part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal effects that have appeared on the basis of the act in question (part thereof) are legitimate. Thus, a general rule has been established in Paragraph 1 of Article 107 of the Constitution that the power of Constitutional Court decisions is prospective. However, this rule is not absolute”.

In the opinion of the petitioner, the exception to the general rule that the power of the Constitutional Court decisions is prospective, is established in Paragraph 4 of Article 72 of the Law on the Constitutional Court, however, it is not related to the resumption of the proceedings in the finalised administrative cases. Neither Paragraph 1 of Article 107 of the Constitution nor Paragraph 4 of Article 72 of the Law on the Constitutional Court establish any other exceptions when a ruling of the Constitutional Court could have retroactive power. Thus, the impugned provision of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases, insofar as in an administrative case the proceedings are resumed after the Constitutional Court recognises a legal act as being in conflict with the Constitution or laws, is in conflict with Paragraph 1 of Article 107 of the Constitution.

  1. According to the petitioner, the impugned provision of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases prescribes different legal possibilities: an administrative decision grounded upon the legal act which was recognised by the Constitutional Court as being in conflict with the Constitution or a law may be reviewed upon the presence of the basis of resumption of the proceedings established in Article 153 of the Law on the Proceedings of Administrative Cases, provided that one appealed against it in court; whereas the possibility to resume the proceedings regarding the administrative decision which was not appealed against in court was not provided. In the opinion of the petitioner, such different legal possibilities to review an administrative decision of the same power are in conflict with the principle of equality of all persons before the law which is consolidated in Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, Š. Jazukevičius, chief specialist of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, wherein it is stated that the impugned provision of the Law on the Proceedings of Administrative Cases is not in conflict with the Constitution.

  1. The position of the representative of the Seimas, the party concerned, who was Š. Jazukevičius, is substantiated by the following arguments.

1.1. Paragraph 1 of Article 107 of the Constitution implies a general rule that the power of Constitutional Court decisions whereby the legal act in question (part thereof) is recognised as being in conflict with the Constitution is prospective, however, it does not mean that there may be no exceptions to this general rule established due to the specific situations determined by other provisions of the Constitution or laws. One of such situations is determined namely by Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases which consolidates a possibility to initiate a retroactive removal of violations of the rights of a person after the Constitutional Court adopts a ruling.

The jurisprudence of the Constitutional Court does not include a comprehensive list of instances when its rulings have retroactive power, however, the Constitutional Court has specified several such instances. For example, in its ruling of 25 October 2011, the Constitutional Court held that Paragraph 1 of Article 67 of the Law on the Constitutional Court (which prescribes that provided that there are grounds to believe that a law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the court (judge) suspends the consideration of the case and, taking account of the competence of the Constitutional Court, applies to it with a petition to decide whether the law or other legal act in question is in compliance with the Constitution) consolidates one of the exceptions to the prospective power of the Constitutional Court’s rulings. In the same ruling the Constitutional Court it was also held that the Seimas has the right to establish such a new legal regulation under which one would remove the negative legal consequences that had arisen in the course of application of the legal act (part thereof) that was recognised by the Constitutional Court, by means of its decision, as being in conflict with the Constitution, i.e. to apply a new legal regulation also to the relations that had occurred prior to the day when the said Constitutional Court decision was officially promulgated.

1.2. Regarding the compliance of the impugned legal regulation consolidated in Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, the representative of the Seimas, the party concerned, notes that a different (differentiated) legal regulation with respect to certain persons who are in different situations may be provided in a law, and that namely such a situation (in the context of resumption of the proceedings after the Constitutional Court recognises a legal act as being in conflict with the Constitution and laws) is of those persons who applied to court and those persons who did not.

1.3. The petitioner applied to the Constitutional Court with the petition requesting to investigate whether Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases is not in conflict with the corresponding provisions of the Constitution, however, in the opinion of the representative of the party concerned, this norm of the law should have been applied not by the petitioner—the Vilnius Regional Administrative Court, but by the Supreme Administrative Court of Lithuania which considered the petition to resume the proceedings. By its ruling of 17 April 2009 the Supreme Administrative Court of Lithuania, while invoking inter alia Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases, resumed the proceedings in a part of the administrative case regarding the appeal of J. T. and referred the case to the Vilnius Regional Administrative Court to hear it anew. Namely the Supreme Administrative Court of Lithuania, in the concrete case of resumption of the proceedings, while applying Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases and supposing that it may be in conflict with the Constitution, had the right to apply regarding it to the Constitutional Court, however, it did not do that. In the opinion of the representative of the Seimas, the party concerned, this constitutional justice case might be dismissed.

III

At the Constitutional Court hearing, Š. Jazukevičius, chief specialist of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, the representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. The Vilnius Regional Administrative Court, the petitioner, requests to investigate whether the provision “The proceedings may be resumed on the following grounds: <…> 11) if the legal act on the basis whereof the court disposed of the case has been revoked as illegal” of Paragraph 2 (wording of 19 September 2000) of Article 153 of the Law on the Proceedings of Administrative Cases, insofar as, according to the petitioner, in an administrative case the proceedings are resumed after the Constitutional Court recognises the legal act as being in conflict with the Constitution or laws, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 107 of the Constitution and with the constitutional principle of a state under the rule of law.

According to the petitioner, the impugned provision indirectly consolidates a possibility to resume the proceedings in an administrative case if the Constitutional Court recognises a legal act on the basis whereof the court disposed of the case as being in conflict with the Constitution or laws, however, according to the petitioner, the Constitution does not provide for such a possibility.

  1. In its jurisprudence the Constitutional Court has construed the provisions of Article 107 of the Constitution more than once.

Paragraphs 1 and 2 of Article 107 of the Constitution prescribe:

“A law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.

The decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal.”

2.1. The Constitutional Court has held more than once that Paragraph 1 of Article 107 of the Constitution is to be construed as meaning that every legal act (or part thereof) passed by the Seimas, the President of the Republic, or the Government, or adopted by referendum, which is recognised as being in conflict with any legal act of higher power, inter alia (and, first of all) with the Constitution, is removed from the Lithuanian legal system for good, as it may never be applied anymore (inter alia the Constitutional Court’s rulings of 28 March 2006, 6 June 2006, 25 October 2011 and 6 February 2012). The Constitutional Court has also held that, while deciding constitutional justice cases subsequent to corresponding petitions of petitioners, it has the constitutional powers to annul the legal power of the corresponding legal acts (parts thereof) if they are in conflict with legal acts of higher power, inter alia (and, first of all) with the Constitution (the Constitutional Court’s ruling of 6 June 2006, the decision of 3 May 2010 and the ruling of 25 October 2011).

2.2. While construing Paragraph 1 of Article 107 of the Constitution, the Constitutional Court has also revealed the content of the presumption of constitutionality of the legal acts and their consequences arising from it: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a legal act (or part thereof) may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, means that, until the Constitutional Court has not adopted a decision that the act in question (or part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal effects that have appeared on the basis of the act in question (part thereof) are legitimate (the Constitutional Court’s rulings of 30 December 2003, 22 December 2010 and 25 October 2011).

  1. In its ruling of 30 December 2003, the Constitutional Court held that a general rule has been consolidated in Paragraph 1 of Article 107 of the Constitution that the power of the Constitutional Court’s decisions is prospective; however, this rule is not absolute.

Thus, there may be constitutionally grounded exceptions to the general rule that the power of the Constitutional Court’s decisions is prospective, i.e. under the Constitution, in exceptional cases the power of the Constitutional Court’s decisions may be targeted also on the consequences of application of the legal act which has been recognised as being in conflict with the Constitution that had emerged before the Constitutional Court adopted the decision that this legal act (part thereof) is in conflict with the Constitution.

  1. It needs to be noted that the exceptions to the general rule established in Paragraph 1 of Article 107 of the Constitution that the power of Constitutional Court decisions is prospective may be grounded while referring to the overall constitutional legal regulation.

4.1. The Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held more than once that the principles and norms of the Constitution constitute a harmonious system, also that it is not permitted to construe any provision of the Constitution so that the content of any other constitutional provision might be distorted or denied, since thus the essence of the entire constitutional regulation would be distorted and the balance of the constitutional values would be disturbed. While invoking such a concept of the provision of Paragraph 1 of Article 6 of the Constitution, in its ruling of 30 December 2003 the Constitutional Court emphasised that, when construing the content of Paragraph 1 of Article 107 of the Constitution, one is to take account of the other provisions of the Constitution, inter alia, of Paragraph 1 of Article 7 of the Constitution, Article 110 of the Constitution, as well as of the constitutional principle of a state under the rule of law. It needs to be noted that the content of Paragraph 1 of Article 107 of the Constitution is to be construed also in the context of the provisions of Paragraph 2 of this article, as well as those of Articles 1, 5, 6, 18, 30 and Paragraph 1 of Article 102 of the Constitution.

4.2. From the aforementioned provisions of the Constitution one is to distinguish Paragraph 1 of Article 7 thereof and the constitutional principle of a state under the rule of law.

Under Paragraph 1 of Article 7 of the Constitution, any law or other act which is contrary to the Constitution shall be invalid. This provision consolidates a principle of the supremacy of the Constitution which is a fundamental requirement of a democratic state under the rule of law. The principle of the supremacy of the Constitution means that the Constitution stands in the exceptional, highest, place in the hierarchy of legal acts; no legal act may be in conflict with the Constitution; no one is permitted to violate the Constitution; the constitutional order must be protected; the Constitution itself consolidates the mechanism permitting to determine whether legal acts (parts thereof) are not in conflict with the Constitution; in this respect, the principle of the supremacy of the Constitution, which is enshrined in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle upon which the entire Lithuanian legal system and the Constitution itself are based; violation of the principle of supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well (the Constitutional Court’s rulings of 24 December 2002, 29 October 2003, 5 March 2004 and 20 March 2007, the decision of 20 November 2009 and the ruling of 5 September 2012).

The essence of the constitutional principle of a state under the rule of law is the rule of law; the constitutional imperative of the rule of law means that the freedom of state power is limited by law, which must be obeyed by all the entities of legal relations (inter alia the Constitutional Court’s rulings of 13 December 2004, 16 January 2006, 13 August 2007 and 22 December 2011); all institutions implementing state power as well as other state institutions must act on the basis of law and in compliance with law (inter alia the Constitutional Court’s rulings of 30 December 2003 and 26 January 2004). Thus, by denying the supremacy of the Constitution, one also denies the constitutional imperative of the rule of law.

4.3. The principle of the supremacy of the Constitution is consolidated not only in Paragraph 1 of Article 7 of the Constitution, but in various aspects it is also entrenched in other articles of the Constitution (the Constitutional Court’s rulings of 24 December 2002, 29 October 2003, 5 March 2004, 20 March 2007, 29 March 2012 and 5 September 2012). Various aspects of this principle are to be revealed while taking account of the said Articles 1, 5, 6, 18, 30 and Paragraph 1 of Article 102 of the Constitution, in the context of which the content of Paragraph 1 of Article 107 of the Constitution is to be construed. Thus, for instance, the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law are implied inter alia by the provision of Article 1 of the Constitution that the State of Lithuania shall be democratic, by the principle of separation of powers consolidated in Paragraph 1 of Article 5, by the provision of Paragraph 2 of Article 5 that the scope of power shall be limited by the Constitution, as well as by the principle related to this provision which is consolidated in Article 18 that human rights and freedoms shall be innate; , inter alia the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be a directly applicable act (the principle of direct application of the Constitution), also the provision of Paragraph 2 of this article that everyone may defend his rights by invoking the Constitution, as well as the provision of Paragraph 1 of Article 30, which is related to the latter, that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, are designated for ensuring the supremacy of the Constitution.

In order to defend the constitutional order, the Constitution (inter alia Paragraph 1 of Article 102 thereof which prescribes that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws) consolidates the institute of constitutional control which permits removal of the laws and other legal acts being in conflict with the Constitution from the legal system. While construing inter alia Paragraph 1 of Article 102 of the Constitution, the Constitutional Court has held that it executes constitutional control, that it is the institution of constitutional justice, that when deciding under its competence on the compliance of legal acts (parts thereof) of lower power with legal acts of higher power, inter alia (and, first of all) with the Constitution, as well as when exercising its other constitutional powers, the Constitutional Court—an individual and independent court—administers constitutional justice and guarantees the supremacy of the Constitution in the legal system as well as constitutional legitimacy (inter alia the Constitutional Court’s rulings of 28 March 2006, 6 June 2006 and 29 June 2010).

4.4. Thus, while taking account of the overall constitutional legal regulation consolidating the supremacy of the Constitution, it needs to be held that a retroactive application of the Constitutional Court decision that a legal act (part thereof) is in conflict with the Constitution may be constitutionally grounded in such exceptional cases, when without applying of an exception to the general rule established in Paragraph 1 of Article 107 of the Constitution that the power of Constitutional Court decisions is prospective, one would deny the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law which is related to it, thus, the requirements of implementation of constitutional justice would be violated.

  1. It has been mentioned that the content of Paragraph 1 of Article 107 of the Constitution is to be construed while taking account of inter alia Articles 1 and 18 of the Constitution.

5.1. Article 1 of the Constitution prescribes: “The State of Lithuania shall be an independent democratic republic.” It needs to be noted that in Article 1 of the Republic of Lithuania Constitutional Law “On the State of Lithuania”—a constituent part of the Constitution—it is consolidated that the statement “The State of Lithuania shall be an independent democratic republic”, i.e. the provision of Article 1 of the Constitution, is a fundamental principle of the state.

When construing the provision of Article 1 of the Constitution, the Constitutional Court has held that in this article the fundamental principles of the State of Lithuania are established: the State of Lithuania is a free and independent state; the republic is the form of governance of the State of Lithuania; the state power must be organised in a democratic way, and there must be a democratic political regime in this country (the Constitutional Court’s rulings of 23 February 2000, 18 October 2000, 6 December 2000, 25 January 2001, 19 September 2002, the conclusion of 5 November 2004 and the rulings of 13 December 2004 and 21 June 2011); the provisions of Article 1 of the Constitution, as well as the principle of a state under the rule of law established in the Constitution, determine the main principles of organisation and activities of state power of the State of Lithuania (the Constitutional Court’s rulings of 18 October 2000, 25 January 2001, 29 March 2012 and 2 May 2012).

Thus, Article 1 of the Constitution consolidates the fundamental constitutional values—the independence of the state, democracy and the republic. They are inseparably interrelated and form the foundation of the State of Lithuania, as the common good of the entire society consolidated in the Constitution, therefore, they are not to be denied at any circumstances.

5.2. As the Constitutional Court has noted more than once, the Constitution is based on universal, unquestionable values, inter alia the respect for law and the rule of law, limitation of the scope of powers, the duty of state institutions to serve the people and their responsibility for society, justice, striving for an open, just and harmonious society and state under the rule of law, the recognition of human rights and freedoms and their respect (the Constitutional Court’s rulings of 25 May 2004, 19 August 2006 and 24 September 2009).

In this context one is to distinguish Article 18 of the Constitution which provides that human rights and freedoms shall be innate. As the Constitutional Court held in its ruling of 19 August 2006, the recognition of human rights as innate means inter alia the fact that the rights and freedoms which cannot be separated from his person and which cannot be deprived from him, belong to the person ipso facto. One of the most important obligations of a democratic state based on law and justice is to respect, defend and protect the values, as well as human rights and freedoms, upon which the Constitution itself adopted by the Nation is based and whose real assessment, defence and protection is raison d’être of the state itself; otherwise, one would not be able to consider the state as the common good of the whole society (the Constitutional Court’s rulings of 19 August 2006 and 24 September 2009).

Thus, one of the constitutional bases of the Republic of Lithuania, as a democratic state under the rule of law, is the principle of recognition of the innate nature of human rights and freedoms (the Constitutional Court’s rulings of 29 December 2004 and 22 December 2010). This principle is also to be considered as a fundamental constitutional value, inseparably related to the constitutional values of the state—independence, democracy and republic—which compose the foundation of the State of Lithuania, as the common good of the entire society consolidated in the Constitution; the innate nature of human rights and freedom may not be denied, either.

5.3. The fact that independence, democracy and republic, as well as innate nature of human rights and freedoms are fundamental constitutional values which compose the foundation of the State of Lithuania, as the common good of the entire society, as well as the fact that these values may not be denied implies that legal acts (parts thereof), whereby the values of the State of Lithuania—its independence, democracy and the republic or the innate nature of human rights and freedoms—would be essentially denied may not be effective as from the day of their adoption and the consequences of application of such legal acts (parts thereof) must be considered as anti-constitutional. A different construction of Articles 1 and 18 of the Constitution would mean that not only the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law would be denied, but also the preconditions would be created to lose the independence of the state, to disrupt democracy or abolish the republic, to deny the innate nature of human rights and freedoms, i.e. to ruin the foundation of the State of Lithuania, as the common good of the entire society which is consolidated in the Constitution.

Taking account of that, one is to draw a conclusion that from the provisions of Paragraph 1 of Article 102 and Paragraph 2 of Article 107 of the Constitution, construed in the context of the fundamental constitutional values consolidated in Articles 1 and 18 of the Constitution, and in the context of the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law, inter alia there arise the powers of the Constitutional Court as an institution implementing constitutional justice and guaranteeing the supremacy of the Constitution in the legal system and constitutional legitimacy in the institutions of constitutional justice, upon establishing in a constitutional justice case that an impugned legal act (part thereof) is not only in conflict with the Constitution, but also virtually denies the fundamental constitutional values of the State of Lithuania—its independence, democracy and the republic, or the innate nature of human rights and freedoms, to recognise also the consequences of application of this legal act (part thereof) as anti-constitutional.

  1. It has been mentioned that the content of Paragraph 1 of Article 107 of the Constitution is to be construed while taking account of inter alia Paragraph 2 of this article which prescribes that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal.

6.1. While construing the constitutional legal regulation established in Paragraphs 1 and 2 of Article 107 of the Constitution, the Constitutional Court has held that after the Constitutional Court recognises a law (part thereof) or other act (part thereof) of the Seimas, act (part thereof) of the President of the Republic, or act (part thereof) of the Government to be in conflict with the Constitution, the state institutions that had issued the corresponding act—the Seimas, the President of the Republic, and the Government—under the Constitution, are prohibited from repeatedly establishing the legal regulation that has been recognised to be in conflict with the Constitution, by adopting corresponding laws and other legal acts afterwards (the Constitutional Court’s ruling of 30 May 2003 , the decision of 8 August 2006 and the rulings of 25 October 2011 and 5 September 2012); the power of the Constitutional Court to recognise a legal act or part thereof as unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof (inter alia the Constitutional Court’s rulings of 30 May 2003, 28 March 2006, 6 June 2006 and 5 September 2012).

Thus, finality and non-appealability of the Constitutional Court’s decisions established in Paragraph 2 of Article 107 of the Constitution are the basis of the constitutional prohibition to overrule the power of a final act of the Constitutional Court. In its ruling of 5 September 2012, the Constitutional Court held that Paragraphs 1 and 2 of Article 107 of the Constitution inter alia give rise to a prohibition against repeatedly establishing by means of the later adopted laws and other legal acts any such legal regulation that is incompatible with the concept of the provisions of the Constitution set forth in the acts of the Constitutional Court. While taking account of that, it needs to be noted that the constitutional prohibition to overrule the power of a final act of the Constitutional Court means not only the prohibition to adopt a legal act (part thereof) of the same title, legal power, subject of regulation and extent as the one that the Constitutional Court has recognised as being in conflict with the Constitution, but also the prohibition to adopt a legal act (part thereof) of a different title, legal power, subject of regulation and extent, the content whereof would be completely or partially identical to the legal act (part thereof), the legal regulation established whereby has been recognised by the Constitutional Court, as to its content, as being in conflict with the Constitution.

6.2. It also needs to be noted that the constitutional prohibition to overrule the power of a final act of the Constitutional Court is one of the means of protection consolidated in the Constitution in order to ensure the supremacy of the Constitution and the rule of law. As the Constitutional Court noted in its ruling of 5 September 2012, if the legislator, nonetheless, adopted a law whereby it disregards the said prohibition, such a law could not be a lawful ground for acquiring the corresponding rights or legal status; a different construction of Paragraphs 1 and 2 of Article 107 of the Constitution would not be in line with inter alia the principle of supremacy of the Constitution as well as the constitutional principles of separation of powers and a state under the rule of law; in addition, this would also be incompatible with the general principle of law ex injuria jus non oritur (illegal acts cannot create law).

Thus, the provision of Paragraph 2 of Article 107 of the Constitution inter alia implies that having violated the prohibition to overrule the power of the final act of the Constitutional Court one also denies the principle of the supremacy of the Constitution consolidated in Paragraph 1 of Article 7 of the Constitution and the constitutional imperative of the rule of law, as well as other aspects of the principle of the supremacy of the Constitution, inter alia the principle of separation of powers which is consolidated in Paragraph 1 of Article 5 of the Constitution and the provision of Paragraph 2 of Article 5 thereof that the scope of power shall be limited by the Constitution. While taking account of that, the legal act (part thereof), whereby one tries to overrule the power of the final legal act of the Constitutional Court, should not be considered as a legal basis to acquire legitimate expectations, corresponding rights or a legal status, i.e. the consequences of application of such a legal act (part thereof) could be regarded as anti-constitutional, inter alia the consequences which had appeared before the decision of the Constitutional Court was adopted that this legal act (part thereof) was in conflict with the Constitution. The opposite construction of Paragraph 2 of Article 107 of the Constitution would mean that, under the Constitution, the law-making subjects are provided with the possibility to overrule the power of final acts of the Constitutional Court, i.e. a possibility not to follow the Constitution and laws for a certain period of time, until the Constitutional Court repeatedly recognises a corresponding legal regulation as being in conflict with the Constitution. It needs to be emphasised that recognition of such a possibility would be equal to the denial of the essence of the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law, thus, it would be inconsistent with the requirements of implementation of constitutional justice.

6.3. In this context it needs to be noted that, as it has been mentioned, under the Constitution, inter alia Paragraph 1 of Article 102 thereof, the Constitutional Court is the institution of constitutional justice which implements constitutional justice and guarantees the supremacy of the Constitution in the legal system and constitutional legitimacy. While taking account of that, one is to draw a conclusion that from the provisions of Paragraph 1 of Article 102 and Paragraph 2 of Article 107 of the Constitution, construed in the context of the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law, inter alia there arise the powers of the Constitutional Court, upon establishing in a constitutional justice case that the impugned legal act (part thereof) is in conflict with the Constitution and having assessed all the circumstances, also to hold that this act (part thereof) is to be assessed as a violation of the constitutional prohibition to overrule the power of the final act of the Constitutional Court, and to recognise the circumstances of application of such a legal act (part thereof) as anti-constitutional.

It needs to be noted that while implementing such constitutional powers, the Constitutional Court is bound also by other imperatives of the principle of a state under the rule of law, inter alia the requirements of protection of legitimate expectations, justice, reasonableness, proportionality, impossibilium nulla obligatio est (nobody is obliged to do something that is impossible) and lex non cogit ad impossibilia (one is not allowed to require impossible things by means of legal acts). In other words, while having established a violation of constitutional prohibition to overrule the power of the final act of the Constitutional Court, the Constitutional Court, while deciding whether its ruling recognising the legal act (part thereof) violating this prohibition as being in conflict with the Constitution is to be applied retroactively, must assess (in view of the circumstances of the constitutional justice case at issue) the possible consequences of such a retroactive application, inter alia the fact, whether such an application is possible at all, whether it would not create the burden upon society and the state that would be disproportionate to the objective to remove the consequences of the anti-constitutional act completely and the consequences related to such a burden which would be especially unfavourable for human rights and freedoms.

In this context it needs to be noted that in certain special cases the Constitution generally does not prevent from protecting and defending also such acquired rights of the person arising from the legal acts recognised later as being in conflict with the Constitution, which, if not defended or protected, would result in greater harm to the person, other persons, society or the state, than the harm inflicted in case of total non-defence or non-protection or partial defence or protection of the said rights; when deciding whether the acquired rights gained by the person during the period of the validity of the legal act which is later recognised as being in conflict with the Constitution (sub-statutory legal acts—as being in conflict with the Constitution and/or the laws) are to be protected and defended or not (and if so, to what extent), in each case it is necessary to find out whether, in case of failure to protect and defend such acquired rights, other values protected by the Constitution would not be violated and whether the balance of values entrenched in and protected and defended by the Constitution would not be disturbed (the Constitutional Court’s rulings of 13 December 2004, 5 July 2007 and the decision of 4 July 2008).

  1. It has been mentioned that the content of Paragraph 1 of Article 107 of the Constitution is to be construed while taking account inter alia of Articles 1 and 18 thereof.

7.1. Article 110 of the Constitution prescribes:

“A judge may not apply a law, which is in conflict with the Constitution.

In cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.”

7.2. It needs to be noted that the provisions of 110 of the Constitution are related inter alia to Paragraph 1 of Article 109 thereof which consolidates an exceptional function of courts to administer justice.

The Constitutional Court has held that a duty to courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions (inter alia the Constitutional Court’s rulings of 15 May 2007, 24 October 2007, 21 January 2008, and 31 January 2011). The principle of justice consolidated in the Constitution, as well as the provision that justice is administered by courts, means that not the adoption of a decision itself in a court, but rather the adoption of a just court decision, constitutes a constitutional value; the constitutional concept of justice implies not a formal and nominal justice administered by the court, not an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered only formally by the court is not the justice that is consolidated in and protected and defended by the Constitution (inter alia the Constitutional Court’s rulings of 21 September 2006, 24 October 2007, 20 February 2008 and 25 September 2012).

7.3. As the Constitutional Court noted in its ruling of 30 December 2003, Article 110 of the Constitution stipulates that a judge may not apply a law which is in conflict with the Constitution and consolidates a constitutional duty of a court investigating a case, in case of doubt whether the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, to suspend the consideration of the case and apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution; by such constitutional regulation one seeks that a corresponding legal act (part thereof) which is in conflict with the Constitution would not be applied, that no anti-constitutional legal consequences of application of such a legal act (part thereof) would appear, that the rights of a person would not be violated.

7.4. Thus, Article 110 of the Constitution establishes an exception to the general rule prescribed in Paragraph 1 of Article 107 thereof that the power of the Constitutional Court’s decisions is prospective: in a considered case the court may not apply a legal act (part thereof) that was recognised as being in conflict with the Constitution by the Constitutional Court while it was implementing the powers established in Paragraph 1 of Article 102 of the Constitution. While construing the prohibition to apply the legal act (part thereof) which is in conflict with the Constitution that is consolidated in Paragraph 1 of Article 110 of the Constitution, one would deny the principle of the supremacy of the Constitution consolidated in Paragraph 1 of Article 7 of the Constitution and the constitutional imperative of the rule of law related to it, as well as other aspects of the principle of the supremacy of the Constitution, inter alia one would deny the principle of direct application of the Constitution consolidated in Paragraph 1 of Article 6 of the Constitution, the essence of the right of each person to defend his rights directly by invoking the Constitution which is consolidated in Paragraph 2 of this article and the essence of the right of each person to apply to court while defending the violated constitutional rights or freedoms which is consolidated in Paragraph 1 of Article 30 of the Constitution.

  1. In its ruling of 25 October 2011, the Constitutional Court noted that the Constitution, inter alia the provision of Paragraph 1 of Article 107 thereof, whereby inter alia an act (or part thereof) of the Seimas may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, does not deny the right of the Seimas to establish such new legal regulation under which one would remove the negative legal consequences that had arisen in the course of application of the legal act (part thereof) that was recognised by the Constitutional Court, by means of its decision, as being in conflict with the Constitution, i.e. to apply the new legal regulation also to the relations that had occurred prior to the day when the said Constitutional Court decision was officially promulgated. The said legal regulation must pay heed to the Constitution; it may not violate the public interest and must fulfil inter alia the requirements of the constitutional principle of a state under the rule of law: it may not create preconditions for denying justice, legal certainty and legal security, and it must protect the honestly acquired rights of other persons.

II

  1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests to investigate whether the provision “The proceedings may be resumed on the following grounds: <…> 11) if the legal act on the basis whereof the court disposed of the case has been revoked as illegal” of Paragraph 2 (wording of 19 September 2000) of Article 153 of the Law on the Proceedings of Administrative Cases, insofar as, according to the petitioner, in an administrative case the proceedings are resumed after the Constitutional Court recognises the legal act as being in conflict with the Constitution or laws, is not in conflict with the Constitution.

Thus, the petitioner virtually impugns the compliance of Item 11 (wording of 19 September 2000) of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with the Constitution.

  1. Article 153 “Grounds for the Renewal of Proceedings” of the Law on the Proceedings of Administrative Cases, Item 11 of Paragraph 2 whereof is impugned in the constitutional justice case at issue, prescribes:

“1. If a case has been disposed of by virtue of an effective court decision or ruling, the proceedings may be resumed on the grounds and according to the procedure established in this Section.

  1. The proceedings may be resumed on the following grounds:

1) if the European Court of Human Rights recognises that a decision of the court of the Republic of Lithuania is not in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols;

2) if material circumstances of the case have been discovered which the claimant was not aware of and could not be aware of during the hearing of the case;

3) if an effective court decision has established knowingly false evidence by the witness, knowingly false conclusion by the expert, knowingly incorrect interpreting, falsification of documents or physical evidence, on the basis whereof  an illegal or unreasonable decision was adopted;

4) if an effective court decision has established criminal actions by the parties, other participants in the proceedings or their representatives or criminal acts by the judges, committed during the hearing of the case;

5) if the court decision or judgement on the ground of which the decision or ruling was adopted is reversed as illegal or unreasonable;

6) if a party to the proceedings was legally incapacitated during the proceedings and had no statutory representative;

7) if in the decision the court gave a statement of the rights and duties of the persons excluded from the hearing of the case;

8) the decision or ruling contains no reasoning;

9) if the case was heard by a court of illegal composition;

10) in case of submission of clear evidence of the commission of a material violation of the norms of substantive law in the application of the norms which could have affected the adopting of the illegal decision or ruling;

11) if the legal act on the basis whereof the court disposed of the case has been revoked as illegal;

12) when it is necessary to ensure the formation of uniform practice of administrative courts.”

Thus, Article 153 of the Law on the Proceedings of Administrative Cases, inter alia the impugned Item 11 of Paragraph 2 thereof, is designated for the regulation of the relations related to the resumption of the proceedings in the cases finalised by the effective decision or ruling of the court.

  1. It is obvious from the material of the case that the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court regarding the compliance of Item 11 (wording of 19 September 2000) of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with the Constitution in the administrative case in which the proceedings have already been resumed by the ruling of the Supreme Administrative Court of Lithuania. It needs to be noted that, when adopting this ruling, the Supreme Administrative Court of Lithuania did not suspend the case and did not apply to the Constitutional Court regarding the compliance of Item 11 (wording of 19 September 2000) of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with the Constitution.

It is also obvious from the material of the case that in the considered administrative case the petitioner should apply the legal acts related to social insurance of accidents at work and professional diseases, inter alia the payments of this insurance.

  1. Thus, in the considered administrative case, the Vilnius Regional Administrative Court, the petitioner, decides regarding the court award of payment of social insurance of accidents at work and occupational diseases, and not regarding the resumption of the proceedings in the case finalised by the effective court ruling.

Thus, the Vilnius Regional Administrative Court, the petitioner, in the administrative case adopted a ruling to suspend the consideration of that case and to apply to the Constitutional Court as regards Item 11 (wording of 19 September 2000) of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases, which must not be applied in the said administrative case.

  1. Under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting to investigate whether such a law (part thereof) or another legal act (part thereof) that should not (could not) be applied in the case considered by the court is not in conflict with the Constitution (the Constitutional Court’s decisions of 22 May 2007, 27 June 2007 and 5 July 2007, the ruling of 24 October 2007, the decision of 29 October 2009, the rulings of 29 November 2010, 2 September 2011 and 18 April 2012).

Under Item 1 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition was filed by an institution or person who does not have the right to apply to the Constitutional Court, whereas under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

  1. While taking account of the arguments set forth, the constitutional justice case subsequent to the petition (No. 1B-54/2009) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Item 11 (wording of 19 September 2000) of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 107 of the Constitution and with the constitutional principle of a state under the rule of law, is to be dismissed.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Article 22 and Item 1 of Paragraph 1 and Paragraph 3 of Article 69 of the Law on the Constitutional Court the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To dismiss the case subsequent to the petition (No. 1B-54/2009) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Item 11 (wording of 19 September 2000) (Official Gazette Valstybės žinios, 2000, No. 85-2566) of Paragraph 2 of Article 153 of the Republic of Lithuania Law on the Proceedings of Administrative Cases is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 107 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

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

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Pranas Kuconis

                                                                                                        Gediminas Mesonis

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas