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On dismissing a case

Case No. 16/2010

 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 ARTICLE 298 OF THE LABOUR CODE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 11 May 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 Vilnius Regional Administrative Court, the petitioner, who was the judge Ernestas Spruogis,

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 7 May 2012, in its public hearing heard constitutional justice case No. 16/2010 subsequent to the petition (No.1B-18/2010) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Article 298 of the Labour Code of the Republic of Lithuania, insofar as, according to the petitioner, it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with Paragraphs 1 and 2 of Article 109 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.

By the legal regulation established in Article 298 of the Labour Code, under which the judge is judicially awarded the amounts of work remuneration and other amounts related to employment relations due to him for not longer than a 3-year period, one limits the right of the courts, which consider cases regarding the judicial award of unpaid work remunerations of judges, to administer justice, i.e. to judicially award all the work remuneration which belongs to judges. By applying this article to judges, one interferes with the independence of judges unreasonably and anti-constitutionally, as they may not seek to be judicially awarded the work remuneration which belongs to them legitimately. Thus, there arise doubts whether Article 298 of the Labour Code, insofar as it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with Paragraphs 1 and 2 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

The petitioner substantiates its doubts regarding the compliance of Article 298 of the Labour Code with the Constitution by the official constitutional doctrine, under which: 1) the notion “remuneration of the judge” includes all the payments paid to the judge from the State Budget; 2) the Constitution prohibits reduction of the remuneration and other social guarantees of judges; any attempts to reduce the remuneration of the judge or his other social guarantees, or limitation upon financing of courts are treated as encroachment upon the independence of judges and courts; 3) it is possible to reduce the remuneration of judges only by means of a law and only temporarily—until the economic and financial situation of the state is extremely difficult; 4) in such a case the reduction of remuneration is possible only if one pays heed to the requirements of the principle of proportionality.

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, Rimantas Jonas Dagys, Chairman of the Seimas Committee on Social Affairs and Labour, wherein it is maintained that the disputed legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

  1. By the norms of Article 109 of the Constitution the courts are not raised to a different constitutional level than other state institutions or persons implementing the state power, but one defines the function of this power—to administer justice. The Constitutional Court has held that the constitutional principle of equality of persons must be followed both in passing of laws and in their application; the constitutional principle of equality of persons before the law means the innate right of the person to be treated equally with the others and obliges to assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner. The provision of Article 5 of the Constitution that, in Lithuania, state power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary enshrines the fundamental principle of division of the main functions of the state power, under which the institutions of the state power do not differ in terms of their importance and level.
  2. Article 298 of the Labour Code establishes the right of the Labour Disputes Commission and the court to judicially award, for the benefit of the employee whose rights or legitimate interests were violated, the work remuneration or other payments related to employment relations. The amount of the work remuneration or other payments related to employment relations which may be awarded judicially is established not by the amount of money, but by the calendar—three—years. By its character, the three-year term is a material legal term. Even though it is related to the period of limitation of action of analogous duration provided in Article 27 of the Labour Code, however, it is not the period of limitation of actions, it regulates not the duration of the right to defend the violated interests, but the validity of the right to work remuneration and other payments related to work. Thus, this term, differently from the period of limitation of actions, may not be renewed by a decision of a court or the Labour Disputes Commission or prolonged by an agreement of parties, i.e. it is imperative. If an employee has the right to work remuneration or other payments for a longer period of time than three years, he may choose a period of three years which is the most beneficial to him, as such prohibition is not provided for in Article 298 of the Labour Code.

The term established in Article 298 of the Labour Code has a certain legal meaning and purpose, it establishes the limits of requirements. While considering the judicial disputes, this norm of the Labour Code creates preconditions to satisfy the requirements of the person, whose rights or legitimate interests were violated, regarding the work remuneration or other payments related to work relations which belong to him, however, it also consolidates certain limits of such satisfaction. One is to make an assumption that such legal regulation was established while seeking, on the one hand, to satisfy the requirements of the employee, but on the other hand, not to create such a legal situation that the legitimate interests of other persons would be violated.

  1. While regulating the work (in the broad sense) relations of judges, officials, employees or state servants, one seeks to ensure their stability, continuity and professional career, therefore, if the provisions of Article 298 of the Labour Code were not applied to judges, one would violate the constitutional principle of equal rights of persons.

Work remuneration is paid from the funds of the State Budget or the budget of municipalities not only to judges, but also to employees of other spheres (teachers, doctors, state servants). The guarantees of their work or office-related relations are to be protected by the same legal principles as those of the persons who work in the public or private sector, therefore, there is no ground to construe the norm of Article 298 of the Labour Code as encouraging judges not to hold their office as, purportedly, it is possible not to pay the remuneration to judges longer than for the period of three years.

In the Constitutional Court rulings one has formulated the general principles of activity of judges and those ensuring their independence. It needs to be emphasised that the guarantees of activity of judges and courts, work remuneration and other social guarantees may not be of an exceptional amount and extent. They must reflect the striving for an open, just, and harmonious civil society and state under the rule of law, which is established in the Constitution. The principle of a state under the rule of law may not be separated from the principle of a social state and social statehood.

III

At the Constitutional Court hearing, the judge E. Spruogis, the representative of the Vilnius Regional Administrative Court, the petitioner, virtually reiterated the arguments set forth in the petition and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

  1. Article 298 of the Labour Code which is impugned by the Vilnius Regional Administrative Court, the petitioner, prescribes: “The employee shall be awarded judicially the amounts of work remuneration and other amounts related to employment relations due to him for not longer than 3-year period.”

Thus, pursuant to Article 298 of the Labour Code, one established a 3-year period, which limited the judicial award of the amounts of work remuneration and other payments related to work relations belonging to an employee.

  1. The petitioner requests to investigate whether Article 298 of the Labour Code, insofar as it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with Paragraphs 1 and 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.
  2. It needs to be noted that the petitioner does not impugn the legal regulation established in Article 298 of the Labour Code under which the judicial award of the amounts of work remuneration and other payments related to work relations belonging to an employee is limited upon establishing a 3-year period. Therefore, the compliance of such legal regulation with the Constitution is not a matter of investigation in this constitutional justice case.
  3. It also needs to be noted that even though the petitioner requests to investigate whether Article 298 of the Labour Code, insofar as, according to the petitioner, it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with the Constitution, it is obvious from the material of the case that it impugns the practice of the Supreme Administrative Court of Lithuania in the cases of the judicial award of the remuneration not paid to judges, under which, when the gaps of regulation of law appear, the questions which are related to the status of judges and their work activities, and which are not regulated by the Republic of Lithuania Law on Courts, the Republic of Lithuania Law on the Remuneration of Judges and other laws may be decided, by taking account of the circumstances in every concrete case while following the provisions of the Labour Code, inter alia by analogy applying the rule established in Article 298 of the Labour Code (ruling of the Supreme Administrative Court of the Republic of Lithuania of 23 January 2009 in administrative case No. A-822-790-09, ruling of 9 March 2009 in administrative case No. A-822-432-09).

Thus, the petitioner impugns not the compliance of the legal regulation established in Article 298 of the Labour Code with the Constitution, but its application by analogy.

  1. The Constitutional Court has held that, under the Constitution and the Law on the Constitutional Court, the Constitutional Court does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply legal acts (Constitutional Court decisions of 13 November 2006, 20 November 2006, 12 September 2007 and 5 September 2011, ruling of 18 April 2012); if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 13 November 2006, 20 November 2006, 27 June 2007, 12 September 2007, ruling of 18 April 1012). The Constitutional Court has also held that the questions of application of law that have not been decided by the legislator are the matter of judicial practice (Constitutional Court decisions of 20 November 2006 and 12 September 2007, ruling of 18 April 2012); courts are not denied an opportunity to fill the legal gaps to a certain extent ad hoc and to apply law (Constitutional Court ruling of 29 November 2010). The judicial (ad hoc) removal of legal gaps creates preconditions for formation of the same court practice in deciding cases of a certain category—the law which is entrenched in court precedents, which, it goes without saying, later can be changed or corrected otherwise by the legislator (or another competent law-making subject), when it regulates certain social relations by means of a law (or other legal act), thus removing the corresponding legal gap already not ad hoc, but by prospective legal regulation of general character (Constitutional Court decision of 8 August 2006).

In the context of the constitutional justice case at issue it needs to be noted that while filling in the legal gaps, the courts inter alia may apply the analogy of a law; while doing so, they must also heed the constitutional principles of justice, reasonableness, proportionality and other principles.

  1. It has been mentioned that the petitioner impugns not the compliance of the legal regulation established in Article 298 of the Labour Code with the Constitution, but its application by analogy. Thus, the petitioner requests to elucidate whether, while awarding judicially the unpaid remuneration to judges, the courts must apply Article 298 of the Labour Code.

It needs to be noted that the petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 20 November 2006, 12 September 2007 and 5 September 2011, ruling of 18 April 2012).

  1. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that 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. Taking account of the arguments set forth, the constitutional justice case subsequent to the petition of the petitioner requesting to investigate whether Article 298 of the Labour Code, insofar as it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with Paragraphs 1 and 2 of Article 109 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 Item 2 of Paragraph 1 and Paragraph 3 of Article 69 of the Republic of Lithuania Law on the Constitutional Court, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To dismiss the case subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Article 298 of the Labour Code of the Republic of Lithuania (Official Gazette Valstybės žinios, 2002, No. 64-2569), insofar as it does not prescribe that the provisions of this article shall not apply to judges, is not in conflict with Paragraphs 1 and 2 of Article 109 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

                                                                                                         Ramutė Ruškytė

                                                                                                         Egidijus Šileikis

                                                                                                         Algirdas Taminskas

                                                                                                         Romualdas Kęstutis Urbaitis

                                                                                                         Dainius Žalimas