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On the resignation of functionaries

Case No. 14/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Functionaries with the Constitution of the Republic of Lithuania

Vilnius, 10 March 1998

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

The court reporter—Daiva Pitrėnaitė

Genovaitė Rokickienė, an adviser at the Public Administration Reforms and Municipal Affairs Committee of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 February 1998, in its public hearing, considered case No. 14/97 subsequent to the petition submitted to the Court by the Alytus District Local Court—the petitioner—requesting an investigation into whether the norm of Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Functionaries was in compliance with Paragraphs 1 and 2 of Article 25 as well as Paragraph 2 of Article 33 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 8 September 1997, the Alytus District Local Court—the petitioner—was investigating a civil case pursuant to a claim of J. Krasnickas to the administration of the Alytus county chief wherein he demanded that he be restored to work. By its ruling, the court suspended the investigation of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the norm of Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Functionaries (Official Gazette Valstybės žinios, 1995, No. 33-759) was in compliance with Paragraphs 1 and 2 of Article 25 as well as Paragraph 2 of Article 33 of the Constitution.

II

The petitioner grounds his request on the following arguments.

Paragraph 3 of Article 20 of the Law on Functionaries provides that after functionaries of “B” level declare their disagreement in the mass media, at political or other public events (except when such declarations are made during the election campaign to the Seimas, the office of the President of the Republic or the municipal councils) with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions, they tender their resignation no later than within 14 days. Should they refuse to resign, they shall be dismissed from office in accordance with the procedure established by the labour legislation and shall be considered dismissed from the civil service.

The norm of Paragraph 3 of Article 20 of the Law on Functionaries contradicts Paragraphs 1 and 2 of Article 25 of the Constitution wherein it is established that the human being shall have the right to have his own convictions and freely express them, as well as that the human being must not be hindered from seeking, obtaining, or disseminating information or ideas. The petitioner is of opinion that the impugned norm of the Law on Functionaries also contradicts Paragraph 2 of Article 33 of the Constitution which provides: “Each citizen shall be guaranteed the right to criticise the work of State institutions and their officers, and to appeal against their decisions. It shall be prohibited to persecute people for criticism.”

III

In the course of preparation of the case for the judicial investigation, the representative of the party concerned disagreeing with the petitioner, presented these counter-arguments.

The Chapter “The Human Being and the State” of the Constitution establishes the rights of the human being as a civil-legal subject which must be guaranteed by the state. Making use of these rights, a human being is in the civil-legal relation with the state. Citizens of the Republic of Lithuania have the right of choice consolidated by Paragraph 1 of Article 33 of the Constitution which provides: “Citizens shall have the right to participate in the government of their State both directly and through their freely elected representatives, and shall have the equal opportunity to serve in a State office of the Republic of Lithuania”

The representative of the party concerned maintained that after he begins to serve in the civil service, a citizen passes from the civil-legal relation with the state to administrative relations. In representing the state, he acquires the status of a functionary. Being in administrative-legal relations with the state, a functionary has to observe the norms of administrative law. Administrative-legal relations are those of authority and subordination. Due to this, the nature of implementation of his civil rights becomes different as his respective obligations occur. He must assume part of responsibility for the functioning of the democratic state himself, as well as be loyal to the state authority which has received citizens’ mandates. In the case that a functionary, instead of discharging his functions, publicly declares his disagreement with the policy implemented by the state authority (the Seimas, the President of the Republic, the Government), he passes from the side of the state to that of the citizen of his own free will and finds oneself de facto in the civil-legal relation with the state again. Guaranteeing the right of choice provided for by the Constitution, the legislature allows him to register officially this change of legal relations by his resignation. Should he refuse to do so, the law prescribes the duty for the administrative body to dismiss him. Provided the citizen believes that this happened against his will, and that the dismissal from the civil service is either an administrative or disciplinary penalty but not the official registration of the change of factual relations, he is entitled to appeal to court.

IV

In the Constitutional Court hearing, the representative of the party concerned virtually reiterated her counter-arguments set out in writing. In addition, the representative of the party concerned explained that under “A Dictionary of the Lithuanian Language”, the word “criticism” (Lith. kritika) means an assessment and analysis of a certain work, as well as pointing out some of its negative aspects. This is a positive fact as while criticism continues there always remains a faith that something could be changed into good. Citizens enjoy all the rights granted by the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms and are entitled to unlimited freedom to criticise the work of state institutions and officials. The right of criticism is more restricted for functionaries than to other citizens. After an individual begins his work in the civil service, his status becomes different and he agrees to the restriction of his civil rights. As a compensation for this, the status of a functionary respectively provides him with certain guarantees.

Functionaries enjoy the right of criticism. They must express their criticism in the way as regulated by the Law on Functionaries, i.e. through all stages of subordination. The law does not prohibit an official from speaking publicly, inasmuch, however, as it is within the limits of criticism, but it prohibits doing so when this is a total disagreement with the policy implemented by state authority institutions, as there must remain loyalty to the lawfully elected authority. Meanwhile, a functionary who declared his disagreement with the policy implemented by the state authority no longer enjoys confidence in him. The disagreement is equivalent to a total refusal to discharge his functions and unwillingness to remain in the administrative legal relation.

In the opinion of the representative of the party concerned, in the case that a functionary participates in the election campaign himself in an attempt to receive citizens’ mandate, he may criticise the policy implemented by the state authority within the limits of the rights provided for citizens by the Convention for the Protection of Human Rights and Fundamental Freedoms as, in this case, he does not fulfil his obligations as a functionary. During an election campaign, a functionary is also entitled to take a holiday and take part in the election campaign when he wishes to support another candidate. In such a case he is enjoying respective civil rights and retains the status of a functionary.

The Constitutional Court

holds that:

Paragraph 3 of Article 20 of the Law on Functionaries provides: “Functionaries of ‘B’ level, disagreeing with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions may resign if the criticism of the said actions, passed through all stages in accordance with the regular course of business, produces no positive results. In the event that the said functionaries declare their disagreement in the mass media, at political or other public events (except when such declarations are made during the election campaign to the Seimas, the office of the President of the Republic or municipal councils), as well as in the cases of non-approval of functionaries as provided for by Article 17 of this law, they tender their resignation no later than within 14 days. Should they refuse to resign, they shall be dismissed from office in accordance with the procedure established by the labour legislation and shall be considered dismissed from the civil service.”

The petitioner doubts whether the norm of Paragraph 3 of Article 20 of this law, according to which, in the event that functionaries of “B” level declare their disagreement in the mass media, at political or other public events with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions, they tender their resignation no later than within 14 days, is in compliance with Paragraphs 1 and 2 of Article 25, as well as Paragraph 2 of Article 33 of the Constitution.

1. Paragraphs 1 and 2 of Article 25 of the Constitution stipulate:

The human being shall have the right to have their own convictions and freely express them.

The human being must not be hindered from seeking, obtaining, or disseminating information or ideas.”

Today’s conception of the human rights attaches much importance to the freedom of convictions and information among other fundamental human rights and freedoms. The human right to convictions and information is one of the fundamentals of a democratic order, as well as a pre-condition for the implementation of other human rights and freedoms. For instance, citizens’ right to freely form societies, political parties and associations, their right to assemble in peaceful meetings, their right to manifest their religion or faith in practice, their electoral right, their right to criticise the work of state institutions and officials could not be implemented unless the human right to have one’s convictions and freely express them, and that to seek, obtain or disseminate information or ideas unhindered which are at the source of the aforesaid rights and freedoms were guaranteed.

In a democratic state a human being is ensured the right to freely form his opinion concerning public affairs, as well as to freely discuss them. The commonest purpose of public discussions on public life issues should seek the truth which the public is concerned about. People’s political will which is formed through discussions on the basis of various information ensures the functioning of a representative democracy.

The fact that the Constitution of this country consolidates the freedom of convictions and information means that the state is commissioned to guarantee and protect people’s right to have convictions and freely express them, as well as the right to seek, obtain and disseminate information unhindered. Along with this, the guarantees for an open society and pluralistic democracy are consolidated.

2. Paragraph 2 of Article 33 of the Constitution provides: “Each citizen shall be guaranteed the right to criticise the work of State institutions and their officials, and to appeal against their decisions. It shall be prohibited to persecute people for criticism.”

Between these norms and the aforementioned norms of Article 25 of the Constitution there is a connection as regards the fact that Article 25 ensures the freedom of peoples’ convictions, while the freedom of information acquires a concrete particularisation in Paragraph 2 of Article 33, i.e., the right to express critical opinions or views, to disseminate critical information in respect to the work of state institutions or officials is guaranteed for citizens. The constitutionally established prohibition against the persecution of people for criticism is a solid guarantee for the implementation of this constitutional right. Moreover, officials may be held criminally responsible for people’s persecution for criticism.

One should note that the function of the norms of Paragraph 2 of Article 33 of the Constitution is not limited only by guaranteeing the subjective right of citizens to criticise the work of state institutions or officials. The said constitutional norms are also linked with the implementation of the fundamental provision consolidated in the Chapter “The State of Lithuania” of the Constitution, according to which, state institutions serve the people.

3. The freedom to express convictions as well as the freedom of information is not absolute. Respectively, Paragraph 3 of Article 25 of the Constitution provides that freedom to express convictions, as well as to obtain and disseminate information, may not be limited in any way other than as established by law, when it is necessary for the safeguard of the health, honour and dignity, private life, or morals of a person, or for the protection of constitutional order.

Thus, it is established in this constitutional norm that any limitation on the expression of convictions and that of the freedom of information must always be conceived as a measure of exceptional nature. The exclusiveness of the limitation means that one may not interpret the constitutionally established possible fundamentals of the limitation by expanding them. The necessity criterion as consolidated therein pre-supposes the fact that in every instance the nature and extent of the limitation must be in conformity to the objective sought (thus termed requirement for a balance).

Under Paragraph 4 of Article 25 of the Constitution, freedom to express convictions or impart information shall be incompatible with criminal actions—the instigation of national, racial, religious, or social hatred, violence, or discrimination, the dissemination of slander, or misinformation.

The Constitution guarantees the right for citizens to criticise the work of state institutions and officials, and this is a particularised form of freedom of convictions and information. Therefore, it should be concluded that this constitutional right of citizens may be subject to limitation by following the said discussed conditions determined by Article 25 of the Constitution. Alongside, one can notice some peculiarities of the norm of Paragraph 2 of Article 33 of the Constitution: first, a special subject of the right guaranteed in this norm is the citizen; second, the nature of this subjective right which is criticism is also distinctive; third, the addressee and the matter of the criticism are defined, which is the work of state institutions and officials. All this, it goes without saying, conditions certain peculiarities of the legal regulation, in particular, when one determines the legal status of a functionary, as well as when one defines the scope and procedure by which he may implement his civil right of criticism.

4. The discussed constitutional norms are in line with the provisions of the international legal acts concerning the protection of expression of people’s convictions and freedom of information. For instance, Article 10 of the Convention for the Protection for Human Rights and Fundamental Freedoms, which was ratified by the Seimas, prescribes:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In the practice of the European Commission for Human Rights and the European Court of Human Rights as regards the application of Article 10 of the Convention the human right to express one’s ideas and convictions freely is emphasised as being of exceptional importance for democracy. Alongside, attention is drawn to the fact that this article provides the states with more freedom of actions if compared to other articles of the Convention, as therein it is stressed that making use of these freedoms is connected with the duties and responsibility, therefore, they may depend on a variety of state control forms. Besides, in the cases investigated by the aforesaid institutions wherein state servants complained about their violated rights which were consolidated by Article 10 of the Convention because of their special official position, one noted that the state was entitled to restrict the right of state servants to express their ideas and convictions freely insofar as this was connected with their official duties and functions.

The civil service in democratic states has common features of a fundamental character that are in line with the nature of the democratic state. Alongside, it goes without saying, the legal regulation of the civil service differs in many respects in various states. In comparative administrative law, taking account of the common traits as well as differences, the legal regulation of the civil service in democratic states is classified on the basis of various aspects. For example, the following categorisation of the main duties of functionaries is presented: (1) a duty to treat work in a state institution as a public service performed in observance of constitutional values and the laws; (2) a duty to guarantee that the civil service is apolitical or neutral; (3) a duty to act impartially is understood as an objective and proper accomplishment of instructions; (4) a duty to accomplish administrative instructions in a professional way.

In democratic states, the political neutrality of civil servants is, as a rule, sought by establishing the following limitations in laws: prohibition on following one’s political views when professional issues are being decided (in all democratic states), prohibition on going on strike (France, Germany, Italy, Switzerland), prohibition on taking part in political rallies (Germany, Italy, the United Kingdom), prohibition on declaring one’s political views when one is accomplishing his official duties (France, Germany, Italy, Switzerland, the United Kingdom, the USA).

In an attempt to ensure the accomplishment of duties in every way possible, some other civil rights of officials are limited, too (e.g. the right to associations and the right to hold positions and discharge functions in political parties), as well as duty is established to act in a self-sacrificing way under certain circumstances.

The doctrine of administrative law of many states especially emphasises the fact that in the event of a dispute between an administrative body and its functionary, the rights of the latter ought to be protected in pursuance of judicial procedures.

5. The fundamentals of state administration in this country are determined by the fundamental provision of the Constitution that the State of Lithuania shall be an independent and democratic state. The fundamental principles of the civil service characteristic of democratic states arise out of the Constitution which is an integral act.

The relations of the civil service are regulated by the Law on Functionaries. This law defines as to what the civil service is, as well as establishes the legal status of functionaries: the procedure of employment in the civil service, the rights, duties, responsibility of, and guarantees for functionaries, as well as the principles of termination of the relations pertaining to this service.

The Law on Functionaries provides that the civil service is the performance of duties in the Seimas, the institutions of the President of the Republic, the Government, other state institutions and structural divisions of municipalities in accordance with the list of positions of the civil service. The servants of the civil service constitute a professional body of functionaries. Functionaries are not politicians. Functionaries stand out of other civil servants in that their work is influential on the activities of the respective institution according to the competence of this institution. In view of the fact as to the level of public institutions where the duties are accomplished, functionaries are categorised as state and municipal functionaries, while these—respectively as either “A” or “B” level functionaries.

In the context of the case at issue, one should note that state functionaries of “B” level are servants, appointed by the Seimas, the President of the Republic, the Government, their structural divisions, ministries, Government institutions (departments, agencies, inspectorates), departments, agencies, inspectorates, and other institutions of the civil service founded at ministries, as well as the other servants specified in the list of positions. Municipal functionaries of “B” level are servants appointed in accordance with the procedure established by the Law on Local Self-Government, as well as the other servants specified in the list of positions. Functionaries of “B” level are employed in the civil service in accordance with the procedure established by the labour legislation and other laws, however, the said functionaries may be employed only after they have taken part in a public competition or passed an examination to attest their qualification.

The purpose of the civil service and the social importance of its tasks determines corresponding duties of functionaries. Under the law, functionaries must: observe the Constitution and laws; implement Government decrees, other legal acts which regulate the functions of functionaries as well as the tasks and instructions given to them by their chiefs; take decisions provided for in the laws determining their competence and in office regulations, and insist that the decisions be timely and accurately carried out; comply with the established regulations of professional ethics; perform their duties faultlessly and in a cultured manner; improve their qualification in accordance with the procedure established by the Government (municipal functionaries—on co-ordination with the Association of Municipalities of Lithuania); keep confidential the state and official secret established by standard acts; guarantee the open character of their work, present information on their work to the residents in the manner established by law; defend the lawful interests of the state and municipalities; declare their property and income in accordance with the procedure established by law; give notice to the head official and, upon his consent, refrain from fulfilling a task in the event of a conflict between personal property interests and the task, or if there are arguments to the effect that personal circumstances of a private character may undermine the prestige of the civil service. It should be noted that the law establishes in a commanding way that functionaries of “B” level must refrain from engaging in public or political activities within the office premises and during working hours.

In addition, in an attempt to ensure effective and impartial discharge of duties certain prohibitions are established for functionaries which are not directly connected with the performance of their service, as, for instance, functionaries are prohibited from: being employed in other enterprises, offices and organisations, being members of their managing bodies, advisers, experts or consultants (unless the law provides otherwise), being employed in another elective, appointive or held post with the exception of that of a scientist or teacher in state institutions of science and studies and those of education and culture as well as the post of a doctor in state medical institutions; receiving any other salary with the exception of payment for creative activities. Functionaries are also prohibited from: holding in trust more than 10 per cent of securities of one enterprise; representing the interests of other domestic and foreign enterprises, offices and organisations, and going abroad on their invitation; going on strike; using the office property for other than official business; using working hours and the opportunities provided by the office for other than official purposes; receiving presents for the performance of official duties, unless this is provided for by international protocol. The requirements and limitations established in the Republic of Lithuania’s Law on Co-ordination of Public and Private Interests in the Civil Service are also applicable to the corps of functionaries. Laws provide for respective responsibility of functionaries.

Thus, a functionary is a participant of competence implementation of respective state or municipal institutions. Taking account of the peculiarities of the legal status of functionaries, certain limitations on their civil rights are possible. From the legal standpoint, it is significant that a person, after he becomes a functionary, commits himself to perform his duties properly, and agrees with the limitations on his rights and freedoms which are provided for in the law. In this case, the fact is of importance that, as a rule, the big requirements for functionaries as well as the limitations applied to them are counterbalanced by respective rights guaranteed to them, as well as a system of incentives and awards, together with work remuneration and other social guarantees.

Summarising the arguments set forth, the Constitutional Court notes that, when deciding the question of the compliance of the impugned norm with the Constitution, one has to take into consideration the protection requirements for the freedom of people’s convictions and information, as well as the constitutional guarantees for citizens’ right to criticise the work of state institutions and officials, as well as the peculiarities of the relations regulated by the Law on Functionaries.

6. As it was mentioned, Paragraph 3 of Article 20 of the Law on Functionaries provides that functionaries of “B” level, disagreeing with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions may resign if the criticism of the said actions, passed through all stages in accordance with the regular course of business, produces no positive results. In the event that the said functionaries declare their disagreement in the mass media, at political or other public events (except when such declarations are made during the election campaign to the Seimas, the office of the President of the Republic or municipal councils), as well as in the cases of non-approval of functionaries as provided for by Article 17 of this law, they tender their resignation no later than within 14 days. Should they refuse to resign, they shall be dismissed from office in accordance with the procedure established by the labour legislation and shall be considered dismissed from the civil service.

6.1. When elucidating the content of these legal norms, one should note that the state authority institutions—the Seimas, the President of the Republic, the Government—act within the competence established to them by the Constitution and which is particularised in the laws. The policy accomplished by the Seimas, the President of the Republic, or the Government is the competent activity of these state institutions which is devoted to achieve respective objectives or to solve tasks which are of social significance. Various factors determine the success of adopted decisions on this level of political power, however, in all cases the corps of functionaries plays the role of utmost importance. Therefore, the requirements for the lawfulness of their actions, professional competence and ethics are applied to functionaries.

The Law on Functionaries consolidates the principle of hierarchical subordination in the civil service. Under Article 15 of the Law on Functionaries, functionaries shall have the right to refuse to fulfil a task or an instruction only in the event that, in their opinion, the given task or instruction is not in conformity with the law. The functionary shall notify the head of the institution thereof and shall fulfil the task or instruction only if so requested in writing by the head of the institution, except in cases where the fulfilment of the task or instruction would constitute a criminal deed or an administrative violation. The functionary must no later than on the next working day present the superior head official with a justified statement declaring that he disagrees with the task or instruction. After comparing Article 15 with Paragraph 3 of Article 20 of the said law, one can perceive that the latter does not include the refusal of a functionary of “B” level to fulfil an official task or instruction, as it is in Article 15 where the official relations of such a character are regulated. Therefore, it should be concluded that Paragraph 3 of Article 20 regulates the relations in the situations where a functionary of “B” level performs his official duties and fulfils instructions given to him but declares that he disagrees with the policy implemented by the Seimas, the President of the Republic, and the Government, as well as their decisions and actions. This is an important aspect of the legal regulation at issue.

6.2. As a rule, the requirement for functionaries to refrain from public criticism of the higher state institutions is derived from the principle of the hierarchical subordination principle. In democratic states, the relations of such nature are commonly defined and assessed in accordance with the norms of professional ethics. The requirement to observe professional ethics along with other duties of functionaries is established by Item 4 of Article 14 of the Law on Functionaries. In Lithuania the regulations for professional ethics, however, are not systematised and the content of the said legal norm is not particularised either. Due to this, the Law on Functionaries is not sufficiently clear whether the norm of Article 14 includes certain relations connected with the criticism of the work of the higher state institutions or officials, or whether such relations are regulated individually by Paragraph 3 of Article 20 of the said law.

It should be noted that Paragraph 3 of Article 20 contains several interrelated but essentially independent norms. For example, one of them stipulates that functionaries of “B” level, disagreeing with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions may resign if the criticism of the said actions, passed through all stages in accordance with the regular course of business, produces no positive results. From the content of this norm one would be able to conclude that functionaries of “B” level are allowed to criticise the work of the higher institutions or officials. Only for the cases of criticism of the work of 3 state institutions mentioned therein, i.e. the Seimas, the President of the Republic, the Government, a special procedure has been established: the functionaries may pass their disagreement with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or sanctions through all stages in accordance with the regular course of business. Taking account of the legal status of functionaries, such a procedure of criticism presentation as provided for by law is in conformity to the Constitution. Under this legal norm, sanctions are not applied to functionaries for such criticism.

Meanwhile, another norm, the one which is being impugned, stipulates that functionaries of “B” level are dismissed from office in the event that they declare their disagreement in the mass media, at political or other public events with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions. Thus, under this norm, the service of functionaries of “B” level is incompatible with the public criticism of the aforementioned institutions.

6.3. It is possible to draw the conclusion from the exposition of the norms of Paragraph 3 of Article 20 of the Law on Functionaries that the notions disagreement and criticism are considered identical therein. However, when interpreting the content of these norms, one cannot directly state this.

One should note that the notions criticism and disagreement are explained differently by “A Dictionary of Contemporary Lithuanian” too. For instance, the word criticism (Lith. kritika) means an analysis, assessment and, especially, exposition of shortcomings. Thus criticism may be both negative and positive. When functionaries publicly express positive criticism regarding the work of respective higher institutions or officials, this in fact means his approval of the policy implemented by these state authority institutions, as well as an attempt to help to find a positive and better solution by means of discussions and debates. The objectives that the public is concerned about may also be sought by means of negative criticism by exposing shortcomings of the work of state authority institutions or that of officials. Publicly declared negative criticism by functionaries, however, may damage the prestige of the institutions of state authority in greater extent, and, depending on the circumstances, might mean disagreement with the policy implemented by the Seimas, the President of the Republic and the Government, or with their decisions or actions.

Disagreement (Lith. nesutikimas) means discord, dissension. Therefore, taking account of the content of the norm of Paragraph 3 of Article 25 of the Constitution, it should be concluded that such publicly expressed disagreement with the policy implemented by the Seimas, the President of the Republic and the Government, or with their decisions or actions, when after its declaration the limit of loyalty to the Constitution is crossed, would not be tolerated and in certain cases would be incompatible with the civil service.

When assessing Paragraph 3 of Article 20 of the said law, one should note certain vagueness in formulating the matter of disagreement as disagreement with the policy implemented by the Seimas, the President of the Republic and the Government, or with their decisions or actions. As mentioned above, the policy implemented by the Seimas, the President of the Republic and the Government constitutes overall activities of these state authority institutions within the competence established to them by the Constitution and particularised in the laws. Competent decisions and actions of these state authority institutions are an integral part of the policy implemented by them. However, after Paragraph 3 of Article 20 indicated that they are independent matters of disagreement, it might seem that the sanctions provided for therein are applicable not only in cases of public declarations of functionaries of “B” level that they disagree with the policy implemented by the Seimas, the President of the Republic and the Government or their decisions but also with their any actions (e.g. those linked with private life) in general.

Thus, by establishing the limitations on the civil right of functionaries of “B” level to criticise the work of state institutions or officials, the legislature neither took account of the differences of the notions disagreement and criticism employed therein, nor did he define the matter of disagreement, while for all cases he established the same legal effects. This contradicts the balance requirement concerning limitations on people’s and citizens’ constitutional rights, thus, this is an essential deficiency of the impugned legal norm.

6.4. The Constitutional Court also draws one’s attention to the vagueness of the discussed law concerning the subjects with respect to whom criticism or disagreement is expressed, as well as the subjects to whom the impugned legal norm is applied.

For instance, the law deals with the disagreement with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions. The Seimas and the Government are, of course, institutions of joint authority, they implement their policy by passing various decisions. Meanwhile, from the standpoint of the legal language, it is not clear as to the meaning of actions of joint authority institutions. Due to this necessity occurs to interpret this legal norm. In this case it would be logical to dwell upon the actions of particular persons, i.e. those of Seimas members or Government members. Such an interpretation would, however, be an expansive interpretation of the legal norm limiting the civil right of functionaries. It would create the grounds to apply this norm even in such cases when a functionary of “B” level publicly criticises the actions of individual Seimas members and ministers or states his disagreement with them.

The impugned legal norm prescribes that the legal effects provided for therein appear after functionaries of “B” level declare their disagreement in the mass media, at political or other public events with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions except when such declarations are made during the election campaign to the Seimas, the office of the President of the Republic or municipal councils. Unless the latter stipulation is regulated in more detail, or co-ordinated with the norms of the laws regulating the elections of the aforesaid institutions wherein prohibitions are established against making advantage of one’s official position during the election campaign, the limits of validity of the impugned legal norm with respect to the subjects to whom this stipulation is applied, as well as with respect to their actions, become indistinct.

6.5. Generalising the arguments set forth in this ruling, it should be concluded that the legal notions as employed by Paragraph 3 of Article 20 of the Law on Functionaries evidently lack clarity. On the basis of the linguistic, logical, systematic interpretation of the norms of the law, one cannot unequivocally comprehend the disposition of the impugned norm. Such imprecise legal regulation creates preconditions for such cases when an administrative body, in applying this norm, establishes the content of the norm by itself. On the other hand, even though the disposition of the norm is vague, the norm provides for the imperative sanction, i.e., the functionary must resign, while should he refuse to resign, he is dismissed from office.

Due to such vagueness of the legal regulation, as well as the correlative disagreement of the disposition of the norm and the sanction in the civil service, legal vagueness and indetermination occur, while the protection of the rights of functionaries is not guaranteed. Such deficient regulation is not in line with the objectives sought in this case, i.e. those of the lawfulness of state administration, stability, confidence and effectiveness. It also contradicts the constitutional principles of protection of the human rights, and one of such principles is that limitations may be established only by law by not disturbing the balance between the objective sought and the limitation on the right.

In view of the arguments set forth, the conclusion should be drawn that the impugned norm of Paragraph 3 of Article 20 of the Law on Functionaries contradicts the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the norm of Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Functionaries to the extent that functionaries of “B” level declare their disagreement in the mass media, at political or other public events (except when such declarations are made during the election campaign to the Seimas, the office of the President of the Republic or municipal councils) with the policy implemented by the Seimas, the President of the Republic or the Government, or with their decisions or actions, they tender their resignation no later than within 14 days, while should they refuse to resign, they shall be dismissed from office, contradicts Paragraphs 1 and 2 of Article 25, as well as Paragraph 2 of Article 33 of the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Jarašiūnas     Kęstutis Lapinskas      Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Pranas Vytautas Rasimavičius      Teodora Staugaitienė     Juozas Žilys