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On refusing to interpret the Constitutional Court’s ruling of 14 February 2011

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE ŠIAULIAI REGIONAL ADMINISTRATIVE COURT REQUESTING TO CONSTRUE THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 14 FEBRUARY 2011

5 September 2011
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, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition of the Šiauliai Regional Administrative Court, the petitioner, requesting “to construe whether the conclusion of Items 6 and 7 of the statement part of the Ruling of the Constitutional Court of the Republic of Lithuania ‘On the compliance of Item 2 of Paragraph 2 of Article 4, Paragraph 1 of Article 5 and Paragraph 1 of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges (wording of 6 November 2008) with the Constitution of the Republic of Lithuania’ of 14 February 2011, wherein it is indicated that ‘Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law’, is also applicable to those judges who have the record of work as an advocate and for whom the period of this work, prior to the adoption of the Republic of Lithuania Law on the Remuneration of Judges, used to be included into the record of work as a judge, and whether the reduction in the previously received social guarantees of these judges, i.e. reducing the additional pay supplementing their remuneration and not calculating their additional annual leave, is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law”.

The Constitutional Court

has established:

1. On 14 February 2011, in constitutional justice case No. 27/2009-29/2009-30/2009-31/2010-53/2010-55/2010 the Constitutional Court adopted the Ruling “On the compliance of Item 2 of Paragraph 2 of Article 4, Paragraph 1 of Article 5 and Paragraph 1 of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges (wording of 6 November 2008) with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2011, No. 20-967; hereinafter also referred to as the Constitutional Court ruling of 14 February 2011).

2. In the Constitutional Court ruling of 14 February 2011 it was recognised that:

Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with the Constitution;

Paragraph 1 of Article 6 of the Law on the Remuneration of Judges (Official Gazette Valstybės žinios, 2008, No. 131-5022), insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is in conflict with the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. The Šiauliai Regional Administrative Court, the petitioner, requests “to construe whether the conclusion of Items 6 and 7 of the statement part of the Ruling of the Constitutional Court of the Republic of Lithuania ‘On the compliance of Item 2 of Paragraph 2 of Article 4, Paragraph 1 of Article 5 and Paragraph 1 of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges (wording of 6 November 2008) with the Constitution of the Republic of Lithuania’ of 14 February 2011, wherein it is indicated that ‘Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law’, is also applicable to those judges who have the record of work as an advocate and for whom the period of this work, prior to the adoption of the Republic of Lithuania Law on the Remuneration of Judges, used to be included into the record of work as a judge, and whether the reduction in the previously received social guarantees of these judges, i.e. reducing the additional pay supplementing their remuneration and not calculating their additional annual leave, is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law”.

The Constitutional Court

holds that:

I

1. The powers of the Constitutional Court to officially construe its own rulings are entrenched in Article 61 of the Law on the Constitutional Court. The Constitutional Court has held in its acts more than once that it enjoys the powers to construe its other final acts as well.

2. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

It needs to be noted that the Constitutional Court has held that, after establishing a constitutionally grounded interest of a petitioner—a court which has been considering a case—to remove doubts as regards proper execution of the Constitutional Court rulings or other final acts (provisions thereof) in order that justice would be properly administered in the case considered by the court, the Constitutional Court may accept requests to construe provisions of a Constitutional Court ruling or other final act, investigate these requests in the manner prescribed by law and announce a corresponding decision (Constitutional Court decision of 22 April 2010).

3. The petition requesting to construe the Constitutional Court ruling of 14 February 2011 was submitted by the Šiauliai Regional Administrative Court. Under Paragraph 1 of Article 61 of the Law on the Constitutional Court, the Constitutional Court may officially construe its ruling at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

The Šiauliai Regional Administrative Court was one of the petitioners in the constitutional justice case in which the Constitutional Court ruling of 14 February 2011, the provisions whereof are requested to be construed, was adopted. Since, under Paragraph 1 of Article 31 of the Law on the Constitutional Court, the petitioner is a party to the case, therefore, according to Paragraph 1 of Article 61 of the Law on the Constitutional Court, it has the right to apply to the Constitutional Court with a petition requesting to construe the said ruling of the Constitutional Court.

Thus, the Šiauliai Regional Administrative Court has the right to request the Constitutional Court to construe the provisions of the ruling of 14 February 2011.

4. In its acts the Constitutional Court has held more than once that the purpose of the institute of construction of Constitutional Court rulings and its other final acts is to disclose the contents and meaning of corresponding provisions of a Constitutional Court ruling or its other final act more broadly and in more detail, if it is necessary, in order to ensure proper execution of that Constitutional Court ruling or other final act so that this Constitutional Court ruling or other final act would be followed.

5. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content. The Constitutional Court has held more than once that the said provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court, among other things, means that, while construing its ruling, the Constitutional Court may not construe its content so that the meaning of its provisions, inter alia the notional entirety of the elements constituting the content of the ruling, the arguments and reasons upon which that Constitutional Court ruling is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case subsequent to which the ruling, the construction whereof is being requested, was adopted, either. The Constitutional Court has held more than once that the consideration of a petition requesting to construe a Constitutional Court ruling or its other final act does not imply a new constitutional justice case.

II

1. The Šiauliai Regional Administrative Court, the petitioner, requests “to construe whether the conclusion of Items 6 and 7 of the statement part of the Ruling of the Constitutional Court of the Republic of Lithuania ‘On the compliance of Item 2 of Paragraph 2 of Article 4, Paragraph 1 of Article 5 and Paragraph 1 of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges (wording of 6 November 2008) with the Constitution of the Republic of Lithuania’ of 14 February 2011, wherein it is indicated that ‘Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law’, is also applicable to those judges who have the record of work as an advocate and for whom the period of this work, prior to the adoption of the Republic of Lithuania Law on the Remuneration of Judges, used to be included into the record of work as a judge, and whether the reduction in the previously received social guarantees of these judges, i.e. reducing the additional pay supplementing their remuneration and not calculating their additional annual leave, is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law”.

2. Although in the resolving part of its petition the Šiauliai Regional Administrative Court, the petitioner, does not specify of which chapter of the reasoning part of the Constitutional Court ruling of 14 February 2011 the construction of Items 6 and 7 is being requested, from the entirety of the petition of the petitioner it is clear that the petitioner is requesting to construe the provisions of Items 6 and 7 of Chapter IV of the reasoning part of the Constitutional Court ruling of 14 February 2011.

3. Items 6 and 7 of Chapter IV of the reasoning part of the Constitutional Court ruling of 14 February 2011, the construction of which is being requested by the petitioner, dealt with the questions related to the calculation of the additional pay, received by judges, for the years served for the State of Lithuania, namely, whether such legal regulation as established in the Law on the Remuneration of Judges, under which the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, is a constitutionally grounded one.

4. As mentioned, in the ruling of 14 February 2011, the construction of the provisions whereof is being requested by the petitioner, the Constitutional Court inter alia recognised that Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with the Constitution.

5. In the Constitutional Court ruling of 14 February 2011 it was inter alia held that:

after the entry into force of the Law on Courts of the wording of 24 January 2002 and the Law on the Entry into Force and Implementation of the Law on Amending the Law on Courts of the wording of 14 March 2002, for the purpose of calculating additional pay of the judge, the work record of the judge also included the period of work as an advocate (Item 19 of Chapter III of the reasoning part);

the Law on the Entry into Force and Implementation of the Law on Amending the Law on Courts (wording of 14 March 2002) was recognised as no longer valid after, on 3 July 2008, the Seimas had adopted the Republic of Lithuania Law on Amending and Supplementing Articles 33, 34, 36, 38, 39, 42, 43, 47, 51, 551, 57, 61, 63, 64, 691, 81, the Title of Chapter IX, Articles 83, 84, 85, 86, 90, 98, 101, 103, the Title of the Second Section of Chapter XII, and Articles 106, 107, 108, 119, 120, 122, 124, 127, 128, 129 of the Law on Courts, Recognising Articles 89, 109, 110, 111, 112 and 125 Thereof as No Longer Valid, and Supplementing the Law with Articles 531 and 532 and Chapter IX Thereof with the Third Section; Article 46 of the aforesaid law, which was adopted on 3 July 2008, inter alia prescribed that “for the judges for whom the annual leave of a longer duration and/or, while taking account of their work record, the additional pay supplementing their positional salary of a greater amount, and/or other social guarantees were established prior to the entry into force of this law, the said guarantees shall not be reduced” (Item 24 of Chapter III of the reasoning part);

on 6 November 2008, the Seimas adopted the Law on the Remuneration of Judges, which establishes the amounts of the remuneration of judges and the procedure for calculation thereof (Item 26 of Chapter III of the reasoning part); Paragraph 2 of Article 4 of this law inter alia prescribes that the remuneration of judges consists of the positional salary and the additional pay for the years served for the State of Lithuania (Item 2 of Chapter IV of the reasoning part);

between advocates and persons working in state or municipal institutions, there are such differences that objectively justify the legal regulation establishing that the period of work as an advocate, differently from the work record of persons who have worked in state or municipal institutions, is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania (Item 6.2 of Chapter IV of the reasoning part).

Thus, after the entry into force of the Law on the Remuneration of Judges, the relations pertaining to the additional pay supplementing the remuneration of judges have been regulated in the Law on the Remuneration of Judges, Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 whereof, to the certain extent, were recognised by the Constitutional Court in the ruling of 14 February 2011 as being not in conflict with the Constitution, whereas the relations pertaining to the additional pay supplementing the remuneration of the judges who until the entry into force of the said law received greater social guarantees, inter alia due to the fact that the period of work as an advocate used to be included into their work record, have been also regulated by the provisions entrenched in Article 46 of the Law on Amending and Supplementing Articles 33, 34, 36, 38, 39, 42, 43, 47, 51, 551, 57, 61, 63, 64, 691, 81, the Title of Chapter IX, Articles 83, 84, 85, 86, 90, 98, 101, 103, the Title of the Second Section of Chapter XII, and Articles 106, 107, 108, 119, 120, 122, 124, 127, 128, 129 of the Law on Courts, Recognising Articles 89, 109, 110, 111, 112 and 125 Thereof as No Longer Valid, and Supplementing the Law with Articles 531 and 532 and Chapter IX Thereof with the Third Section (hereinafter also referred to as the Law on Amending and Supplementing the Law on Courts).

6. In its petition the petitioner inter alia indicates that the conclusion formulated in Item 7 of Chapter IV of the reasoning part of the Constitutional Court ruling of 14 February 2011 that the disputed legal regulation, under which the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay supplementing remuneration, is not in conflict with the Constitution, is applicable to persons who became judges after the entry into force of the Law on the Remuneration of Judges, however, the petitioner has had doubts as to whether the said conclusion is applicable to the judges who have the record of work as an advocate, and the period of that work, prior to the entry into force of the Law on the Remuneration of Judges, used to be included into the record of work as a judge.

7. From the entirety of the petition of the petitioner it is clear that the petitioner has been uncertain not as to the meaning of the provisions of Items 6 and 7 of Chapter IV of the reasoning part of the Constitutional Court ruling of 14 February 2011, but as to whether after the entry into force of the Constitutional Court ruling of 14 February 2011, when calculating the remuneration of judges, the judges for whom, prior to the entry into force of the Law on the Remuneration of Judges, the higher additional pay supplementing their remuneration as well as other social guarantees were established, inter alia due to the fact that the period of work as an advocate used to be included into their work record, are still subject to the application of the provision entrenched in Article 46 of the Law on Amending and Supplementing the Law on Courts that the judges for whom, prior to the entry into force of this law, the annual leave of a longer duration and/or, while taking account of their work record, the additional pay supplementing their positional salary of a greater amount, and/or other social guarantees were established, the said guarantees are not reduced, or whether they are subject to application of the conclusion formulated in Item 7 of Chapter IV of the reasoning part of the Constitutional Court ruling of 14 February 2011, which is also entrenched in Item 1 of the resolving part of this ruling.

In other words, the petitioner is inquiring whether the fact that the legal regulation established in the Law on the Remuneration of Judges, under which the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, is not in conflict with the Constitution, means that for the judges for whom, prior to the entry into force of Law on the Remuneration of Judges, the higher additional pay supplementing their remuneration as well as other social guarantees were established, inter alia due to the fact that the period of work as an advocate used to be included into their work record, the said additional pay (other social guarantees) must be recalculated (reduced), while not including the period of work as an advocate into their work record.

8. Thus, the petition of the Šiauliai Regional Administrative Court, the petitioner, is to be regarded as a petition to construe as to how, after the entry into force of the Constitutional Court ruling of 14 February 2011, the additional pay for the years served for the State of Lithuania must be calculated for the judges who, prior to the entry into force of the Law on the Remuneration of Judges, received the higher additional pay supplementing their remuneration, as well as other social guarantees, inter alia due to the fact that the period of work as an advocate used to be included into their work record. Such a petition virtually means that one is requesting to construe not the provisions of the Constitutional Court ruling of 14 February 2011, but the questions of application of legal acts.

9. The Constitutional Court has held more than once 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 23 September 2002, 13 November 2006, 20 November 2006, 27 June 2007 and 16 November 2010). The petitions requesting to construe as to how the provisions of a legal act are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 23 September 2002 and 20 November 2006).

10. In addition, it needs to be noted that in the resolving part of its petition the petitioner inter alia inquires as to whether the reduction in the previously received social guarantees of the judges who, prior to the entry into force of the Law on the Remuneration of Judges, received greater social guarantees, i.e. “reducing the additional pay supplementing their remuneration and not calculating their additional annual leave, is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law”.

11. It has been mentioned that in the Constitutional Court ruling of 14 February 2011 one inter alia was deciding on whether such legal regulation as established in the Law on the Remuneration of Judges, under which the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, is a constitutionally grounded one. It has also been mentioned that in this ruling it was recognised that the legal regulation entrenched in Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges is not in conflict with the Constitution, whereas Paragraph 1 of Article 6 of the same law is in conflict with the Constitution.

12. It has also been mentioned that the relations of the additional pay supplementing the remuneration of the judges who, prior to the entry into force of the Law on the Remuneration of Judges, received greater social guarantees, inter alia due to the fact that the period of work as an advocate used to be included into their work record, are regulated inter alia by the provision entrenched in Article 46 of the Law on Amending and Supplementing the Law on Courts, whereby for the said judges their previously received social guarantees are not reduced.

13. In the Constitutional Court ruling of 14 February 2011 the compliance of the aforementioned provision of Article 46 of the Law on Amending and Supplementing the Law on Courts with the Constitution was neither investigated nor assessed.

14. As mentioned, the Constitutional Court has held more than once that the Constitutional Court may not construe what was not investigated in that constitutional justice case subsequent to which the ruling, the construction whereof is being requested, was adopted (inter alia Constitutional Court decisions of 28 March 2006, 21 November 2006, 1 February 2008 and 6 November 2009). This would constitute a matter of special investigation (Constitutional Court decision of 17 December 1998).

15. 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.

The Constitutional Court has held that the said provision is also applicable mutatis mutandis to the petitions, provided for in Article 61 of the Law on the Constitutional Court, requesting to construe acts of the Constitutional Court (Constitutional Court decision of 20 November 2006).

16. Taking account of the arguments set forth, the Constitutional Court will not construe, subsequent to the petition of the Šiauliai Regional Administrative Court, the Constitutional Court ruling of 14 February 2011.

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 has passed the following

decision:

To refuse, subsequent to the petition of the Šiauliai Regional Administrative Court, to construe the ruling of the Constitutional Court of the Republic of Lithuania of 14 February 2011.

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