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On the Lithuanian National Radio and Television and on dismissing the Prosecutor General from office

Case No. 13/97

 

 

 THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the Republic of Lithuania’s Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public and the Resolution of the Seimas of the Republic of Lithuania “On Dismissing V. Nikitinas from the Post of the Prosecutor General” of 25 February 1997 with the Constitution of the Republic of Lithuania

 

Vilnius, 21 April 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, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Česlovas Juršėnas, acting as the representative of a group of Seimas members, the petitioner

Vaidotas Vaičaitis, a consultant at the Legal Division of the Office 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 26 March 1998, in its public hearing, considered case No. 13/97 subsequent to the petition submitted to the Court by a group of Seimas members, the petitioner, requesting an investigation into whether the Republic of Lithuania’s Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public and the Resolution of the Seimas of the Republic of Lithuania “On Dismissing V. Nikitinas from the Post of the Prosecutor General” were in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 12 December 1996, the Seimas passed the Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public (Official Gazette Valstybės žinios, 1996, No. 121-2851; hereinafter referred to as the impugned law) by which it was established that after the Republic of Lithuania’s Law on Amending Article 29 of the Law on the Provision of Information to the Public of 5 December 1996 has gone into effect, the powers of the members of the Council of the National Radio and Television of Lithuania (hereinafter referred to as the LRT) who had been appointed by the President of the Republic and the Seimas shall cease.

The petitioner requests an investigation into whether this law is in compliance with Articles 5, 67 and Paragraph 4 of Article 89 of the Constitution.

On 25 February 1997, the Seimas adopted the Resolution “On Dismissing V. Nikitinas from the Post of the Prosecutor General” (Official Gazette Valstybės žinios, 1997, No. 18-391; hereinafter referred to as the impugned resolution). By its resolution the Seimas dismissed V. Nikitinas from the post of the Prosecutor General and charged him to temporarily perform the duties of the Prosecutor General.

The petitioner requests an investigation into whether the part of the said Seimas resolution regarding the substitution of the Prosecutor General is in compliance with Article 5, Paragraph 1 of Article 68, and Paragraph 1 of Article 69 of the Constitution.

II

The petitioner grounds his request on the following arguments.

1. In 1996, following then in force Article 29 of the Republic of Lithuania’s Law on the Provision of Information to the Public, the President of the Republic of Lithuania appointed 3 members to the LRT Council. In an attempt to change the composition of the LRT Council, the Seimas amended Article 29 of the said law. Due to such an amendment the President of the Republic lost the right which had been granted to him several months before to take part in forming the LRT Council.

The petitioner does not question the prerogative of the Seimas to broaden the rights of Head of State by means of legislation in the sphere of public life which is not directly regulated by the Constitution. The parliament may also restrain the powers of the President of the Republic providing they are not defined in the Constitution but additionally granted by means of a law passed by the Seimas. From a formal point of view, it was precisely done so: the Seimas of a certain term of office broadened the powers of the President of the Republic, while the Seimas of another term of office restrained them. It is important, however, that in this case not only did the Seimas restrain the powers of the President of the Republic by law (and this should not be questioned) but, in place of the President of the Republic, reduced by another act—the impugned law—the term of office of the members of LRT Council who had been appointed by the President of the Republic. Thus, the Seimas interfered with the discharge of legitimate functions of another branch of state power. Meanwhile, Article 5 of the Constitution establishes the principle of separation of powers; under this principle, no branch of state power may act for another, nor may it discharge someone else’s functions. Even if the legislature, after the legal basis had been changed, proposed to the President of the Republic that he dismiss the members of the LRT Council that he had appointed, and in case the President of the Republic had not dismissed them, even in that event an appeal of the Seimas or Seimas members to the Constitutional Court should be considered a constitutional act but not that of the adoption of the impugned law. Neither Article 67 of the Constitution which establishes Seimas powers nor other articles allow the Seimas to act as the President of the Republic, the Government or the courts. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall “perform all the duties which he or she is charged with by the Constitution and laws”, while under Paragraph 4 of Article 89, “the powers of the President of the Republic may not be executed in any other cases, or by any other persons or institutions”.

2. By his decree, the President of the Republic proposed that the Seimas dismiss V. Nikitinas from the post of the Prosecutor General. Alongside, he proposed to commission A. Paulauskas, a deputy Prosecutor General, to temporarily act as the Prosecutor General. However, J. Razma, Secretary General of the Seimas, preparing a respective draft resolution of the Seimas on the basis of the decree of the President of the Republic, instead of the name of A. Paulauskas, entered that of V. Nikitinas. It was such a resolution of the Seimas that was adopted on 25 February 1997. In this case the Seimas not only exceeded its powers but limited the right of legislative initiative of the President of the Republic.

Under Paragraph 1 of Article 68 of the Constitution, “the right of legislative initiative in the Seimas shall belong to the members of the Seimas, the President of the Republic, and the Government”. Under the Republic of Lithuania’s Law on the Prosecutor’s Office and the Republic of Lithuania’s Law on Courts, which were valid at the moment of the adoption of the impugned resolution, the right to propose that the Seimas dismiss the Prosecutor General from his post was vested in the President of the Republic. Conforming to these legal norms, the President of the Republic issued decree No. 1206 of 17 February 1997. Alongside, he proposed as to what official should temporarily act as the Prosecutor General.

The petitioner maintains that in the course of the adoption of the impugned Seimas resolution, laws were violated. Under Article 11 of the Law on the Prosecutor’s Office which was valid then, the Prosecutor General had to be appointed by the Seimas on the recommendation of the President of the Republic. As the laws do not provide for a special procedure as to how a person should be appointed to temporarily act as the Prosecutor General, thus, in the opinion of the petitioner, under common legal norms, the same procedure had to be applied as in appointment of the Prosecutor General. Therefore, the Seimas was entitled to appoint a person to temporarily act as the Prosecutor General only on the recommendation of the President of the Republic but never on that of a Seimas member. No Seimas resolution may replace norms of a law of the Republic of Lithuania.

As the Seimas approved such a impugned resolution, thus, in the opinion of the petitioner, it contradicts the provisions of Paragraph 1 of Article 5, Paragraph 1 of Article 68, and Paragraph 1 of Article 69 of the Constitution.

III

1. In the course of the preparation of the case for the judicial investigation, the representative of the party concerned V. Vaičaitis, a consultant at the Legal Division of the Office of the Seimas, in his written explanation, mainly invoking the historical method of the construction of legal acts, noted that, on 5 December 1996, the Seimas adopted the Law on Amending Article 29 of the Law on the Provision of Information to the Public by which a different procedure of formation of the LRT Council was provided for than it had been established in the Law on the Provision of Information to the Public which had been valid before. In the explanatory note of respective draft laws the purpose of the amendment was defined as follows: to diminish political impact on the National Radio and Television of Lithuania. This is confirmed by the deliberations which took place in the Seimas after the draft law had been submitted. The explanatory note also suggested that the provision be entered that by respective amendments of laws “it is proposed that the members of the Council which are delegated by the President of the Republic be dismissed (by suspending their powers by a decree of the President of the Republic in case of his agreement)”. During the adoption of this law, it became clear that the procedure of implementation of this law is vague as the Republic of Lithuania’s Law on the National Radio and Television provided for concrete cases when the powers of the elected members of the LRT Council were to cease. Therefore, there occurred thus termed internal collision of several laws.

On 10 December 1996, the President of the Republic issued the Decree “On the Returning of the Republic of Lithuania’s Law on Amending Article 29 of the Law on the Provision of Information to the Public to the Seimas for Additional Deliberation”. In his decree, the President of the Republic agreed in principle, however, with some reservations, with the provisions of the law passed by the Seimas concerning amendment of formation principles of the LRT Council. In deciding the collision regarding already appointed members of the LRT Council, he proposed to enter the provision into the said law, stipulating that “after this law has gone into effect, the powers of the LRT Council members who were appointed by the President of the Republic of Lithuania and the Seimas of the Republic of Lithuania shall cease”. During the additional deliberation upon the law referred back by the President of the Republic, the Seimas, under the Constitution and the Statute of the Seimas, might adopt only two decisions: either to approve or not to approve the decree of the President of the Republic. Still, the Seimas did not approve the decree of the President of the Republic, however, it decided to take account of the termination of the powers of the LRT Council members as set forth therein. This was done by passing the impugned law in the wording whereof the proposal of the decree of the President of the Republic was reiterated. The President of the Republic signed the said law, and it went into effect on 14 December 1996 after it had been publicised in the official gazette Valstybės žinios.

The representative of the party concerned affirmed that, in the process of law-making, two chief agents are provided for by the Constitution: the Seimas and the President of the Republic (the Government, as well as 50,000 citizens of the Republic of Lithuania, also have the right of legislative initiative). The President of the Republic, who is Head of State under the Constitution, participates in the process of law-making by making use of the postponing veto right (Articles 71 and 72), as well as by signing the laws enacted by the Seimas (Article 70). Such participation of two institutions in the process of law-making ensures a broader democracy in the adoption of a law as a compromise reached after coordination of interests of various social groups of society.

The representative of the party concerned indicated that, interpreting the compliance of the impugned law with Paragraph 4 of Article 89 of the Constitution, one should note that the President of the Republic did not recall the LRT Council members appointed by his decree of 4 November 1996, as until December 14 then in force Law on the National Radio and Television of Lithuania did not allow him to do so. The President of the Republic, however, expressed his view in respect to the LRT Council members appointed by him in the decree of 10 December 1996, as well as by signing the impugned law. The party concerned is of opinion that this allows presuming that the impugned law does not contradict Articles 5, 67, and 89 of the Constitution.

2. In the course of the preparation of the case for the judicial investigation, P. Ancelis, a consultant at the Legal Division of the Office of the Seimas, in his written explanation pointed out that, according to Article 70 of the Constitution, as well as Article 17 of the Republic of Lithuania’s Law “On the Procedure of Publication and Entry into Force of Laws and Other Legal Acts of the Republic of Lithuania”, one is able rather concretely and reasonably to group the acts depending on their legal power when they are publicised in the official gazette Valstybės žinios. He draws the conclusion that the adoption of the impugned Seimas resolution may not be linked with Articles 68 and 69 of the Constitution, nor may it be likened to the procedure when, by his decree, the President of the Republic makes use of the legislative right by submitting to the Seimas respective draft laws to deliberate upon.

The representative of the party concerned maintained that the Constitution emphasises the supremacy of the Seimas in respect to other branches of state power, i.e. the President of the Republic and the Government, as well as the Judiciary. The scope of powers are limited by the Constitution, while it does not indicate any procedure of the appointing of the Prosecutor General. Paragraph 2 of Article 77 of the Constitution provides that the President of the Republic shall perform all the duties which he or she is charged with by the Constitution and laws. Thus, under then in force norms of the Law on Courts and those of the Law on the Prosecutor’s Office, the President of the Republic was entitled to propose that the Seimas dismiss the Prosecutor General, and he accomplished his right by presenting the said decree. The laws which were valid then did not regulate the procedure by which a person is commissioned to temporarily act as the Prosecutor General at all. The Seimas, conforming to its powers provided for by Item 5 of Article 67 of the Constitution (the Seimas shall “form State institutions provided by law, and shall appoint and dismiss their chief officers”), adopted a grounded and legitimate decision. One should not base oneself on common legal norms as Article 6 of the Constitution provides that the Constitution shall be an integral and directly applicable statute.

The representative of the party concerned also pointed out that both the decree of the President of the Republic and the draft of the impugned resolution prepared by the Secretary General of the Seimas were presented to the Seimas. By Item 6 of Article 9 of the Statute of the Seimas a Seimas member is granted the right “to prepare and present draft laws and other draft legal acts to the Seimas for deliberation”. In case of the legal vacuum, the Seimas was entitled to adopt a different decision than that proposed by the President of the Republic. One might speak about the limitation on the powers of the President of the Republic only in the case that, for example, instead of approval or non-approval of the candidature for the post of the Prime Minister, the Seimas appointed another person.

The supremacy of the Seimas in regulating appointment of the Prosecutor General was established by the representative of the party concerned by analysing the amendments of, and supplements to, the Law on Courts and the Law on the Prosecutor’s Office which had been made of late years. He pointed out that by these amendments and supplements, the one-person right of the President of the Republic to appoint the Prosecutor General was later changed by the Seimas prerogative to appoint it on the recommendation of the President of the Republic, while at present the President of the Republic has no right at all to choose a candidature for the Prosecutor General. The President of the Republic has signed these laws with the latest amendments and has officially promulgated them.

On the basis of these arguments, the representative of the party concerned draws the conclusion that the impugned resolution of the Seimas is in compliance with the provisions of Paragraph 1 of Article 5, Paragraph 1 of Article 68, and Paragraph 1 of Article 69 of the Constitution.

IV

In the course of the judicial investigation, the representative of the petitioner virtually reiterated the arguments set out in the petition. The representative of the petitioner requested an additional investigation into whether both impugned legal acts were in compliance with Article 1 of the Constitution, as, in his opinion, only in a democratic state the branches of state power respect one another and do not interfere with the functions discharged by other branches of state power.

The representative of the petitioner also indicated that, in deciding the problem of the substitution of the Prosecutor General, one had to follow Chapter 32 of the Statute of the Seimas which regulates deliberation upon the candidatures and appointment of state officers, as well as the precedent when, by his decree No. 121, the President of the Republic recommended that the Seimas approve a temporary Chairperson of the Board of the Lithuanian Bank to temporarily act as a Chairperson of the Board of the Lithuanian Bank even though the law did not provide either as to who was entitled to submit the candidature.

In the opinion of the petitioner, under Article 30 of the Statute of the Seimas, only the Speaker of the Seimas is entitled to present to the Seimas the candidatures for heads of state institutions and their substitutes for approval providing the Constitution and laws do not provide otherwise. Such a right is not granted to Seimas members.

V

In the course of the judicial investigation, the representative of the party concerned virtually reiterated the counter-arguments set out in written explanations.

VI

In the course of preparation of the case for the judicial investigation, on 14 November 1997, an explanatory paper of A. Meškauskas, Head of the Office of the President of the Republic of Lithuania, was received. It is indicated therein that then in force Law on the Prosecutor’s Office did not establish any procedure for appointment of a person to act temporarily as the Prosecutor General, therefore, he had to be appointed under the same procedure as the Prosecutor General. In case of rejection of the proposed candidature, the President of the Republic was entitled to present another candidature to act temporarily as the Prosecutor General for appointment. This right of the President of the Republic has been annulled by the Seimas decision. It is also maintained in the paper that the powers of the LRT Council members might have been suspended only by the person who had appointed them, i.e. the President of the Republic.

The Constitutional Court

holds that:

The main principles of the organisation and activities of the authorities of the State of Lithuania are determined by the fundamental provision “the State of Lithuania shall be an independent and democratic republic” of Article 1 of the Constitution and the aspiration for a state under the rule of law which is entrenched in the preamble of the Constitution.

Paragraph 1 of Article 5 of the Constitution provides: “In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary.” The principle of separation of powers as consolidated therein is important in judging over the request of the petitioner whether the Seimas infringed upon the powers of the President of the Republic by the impugned legal acts.

In its rulings of 26 October 1995 and 10 January 1998, as well as in its decision of 13 November 1997, the Constitutional Court noted that the principle of the separation of powers means that the legislative, executive and judicial powers must be separated, sufficiently independent, however, they must be balanced. Every state institution is granted the competence corresponding to its purpose, where the particular content whereof depends on the form of state governance.

The status of the state supreme institutions is, first of all, grounded on the authorisations directly consolidated in the Constitution: those of the Seimas are entrenched in Article 67, those of the President of the Republic—Article 84, those of the Government—Article 94 of the Constitution. The status of the Constitutional Court is consolidated in Chapter VIII, while that of the Judiciary—in Chapter IX of the Constitution.

Other articles of the Constitution also contain directly entrenched authorisations of the state supreme institutions (for example, decisions concerning State loans and other basic property liabilities of the State shall be adopted by the Seimas (Paragraph 1 of Article 128); the Auditor General shall give an account to the Seimas on the annual execution of the State Budget (Paragraph 2 of Article 134); in the period between sessions of the Seimas, the President of the Republic decides in respective cases whether to give his consent to institute a legal action against a judge, or have him arrested, or limit his freedom otherwise (Paragraph 2 of Article 114); the Chief Commander of the armed forces shall be the President of the Republic (Paragraph 2 of Article 140); the Government appoints representatives to supervise that the Constitution and the laws are observed by municipalities (Paragraph 2 of Article 123); the Government shall prepare a draft budget of the State (Article 130)).

In defining the functions and authorisations of the state supreme institutions, the Constitution also provides for their reciprocal control and balance, as well as their partnership. For instance, the President of the Republic is entitled to appoint the Prime Minister, however, he may accomplish this right only after the assent of the Seimas (Item 6 of Article 67, Items 4 and 5 of Article 84, Paragraph 1 of Article 92 of the Constitution); the Seimas shall appoint judges to and the President of the Supreme Court (Item 10 of Article 67 of the Constitution), however, for this the recommendation of the President of the Republic is needed (Item 11 of Article 84 of the Constitution); the Seimas establishes and abolishes ministries of the Republic of Lithuania, however, for this the recommendation of the Government is required (Item 8 of Article 67 of the Constitution).

A direct establishment of authorisations in the Constitution means that one state institution may not take over any authorisations from another state institution, nor may it transfer or waive them. Such authorisations may not be altered or limited by law by establishing additional conditions of their implementation. In case one wishes to alter or limit them, an amendment to the Constitution must be adopted.

Along with the authorisations directly entrenched in the Constitution, the state supreme institutions also have those which are to be established by law. For instance, resorting to Item 10 of Article 84 of the Constitution, wherein it is established that the President of the Republic shall “appoint or dismiss, according to the established procedure, state officers provided by law”, one can judge about the possibility of such authorisations pertaining to the President of the Republic. In establishing such authorisations, one takes into consideration the provisions and principles of the Constitution which consolidate the nature of state institutions, as well as the character of their interaction.

1. On the compliance of the Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public with the Constitution.

1.1. The Supreme Council-Reconstituting Seimas of the Republic of Lithuania by the Resolution “On the Approval of the Statute of the Radio and Television of Lithuania” of 10 May 1990 approved the Statute of the Radio and Television of Lithuania. Article 1 of the said statute stipulated that the Radio and Television of Lithuania shall be a state institution which is accountable to the Supreme Council of the Republic of Lithuania. Article 8 of the statute provided: “The Radio and Television of Lithuania shall be directed by the Board and the Director General that are appointed by the Supreme Council of the Republic of Lithuania until the expiration of the powers of the latter.” By this norm the status and administration of the LRT, as a state institution, was established. The LRT was formed by the supreme institution of the state—the Supreme Council-Reconstituting Seimas. Other items of this article of the Statute consolidate the subordination of the LRT to, and its dependence on, the Supreme Council-Reconstituting Seimas. Thus, the supervision over the activities of the LRT, as a state institution, was also directly exercised by the state supreme institution which had formed it.

Such former status and administration of the LRT was changed in essence by Article 29 of the Law on the Provision of Information to the Public which was adopted on 2 June 1996. It was provided therein: “The Council shall be the highest governing body of the National Radio and Television of Lithuania, established for a period of 3 years and comprised of 13 individuals. 3 of the members shall be appointed by the President of the Republic, 4—by the Seimas, 6—by drawing lots by choosing 1 from the Lithuanian Periodical Press Publishers’ Association, Lithuanian Journalists’ Union, Lithuanian Cinematographers’ Union, Lithuanian Theatre Union, Lithuanian Composers’ Union, Lithuanian Architects’ Union <...> each.” Paragraph 1 of Article 8 of the Law on the National Radio and Television of Lithuania provided that the administrative bodies of the LRT shall be the Council of the National Radio and Television of Lithuania and its Administration. The LRT Council is formed under the said procedure as established by Article 29 of the Law on the Provision of Information to the Public.

Conforming to the authorisations to the President of the Republic as established by Article 29 of the Law on the Provision of Information to the Public and Article 8 of the Law on the National Radio and Television of Lithuania, by his decree of 4 November 1996, the President of the Republic appointed 3 members to the LRT Council. Basing itself on these legal norms, by its resolution of 5 November 1996, the Seimas appointed 4 members to the LRT Council. Under the procedure established by law, the other members of the LRT Council were appointed, too. Thus, the administrative body of the LRT, i.e. the Council, was formed.

On 5 December 1996, the Seimas of the new term of office adopted the Law on Amending Article 29 of the Law on the Provision of Information to the Public by which a different procedure of formation of the LRT Council was established. According to it, 15 public and art creators’ organisations were to form the composition of the Council by delegating 1 member each. Thus, there are grounds to assert that by establishing such a procedure of formation of the LRT Council by this law, one attempted to abolish any influence of state institutions or that of state officials on the LRT.

1.2. On 12 December 1996, the Seimas passed the Republic of Lithuania’s Law on Amending and Supplementing Article 8 of the Law on the National Radio and Television of Lithuania. This law provided for a new legal basis for recalling members of the Council from office. Item 5 of Paragraph 4 of the said article stipulates that that the members of the LRT Council may not be recalled from office until their term of office has not expired save provided the legal basis of the appointment of a Council member is changed. On the same day, by the impugned law, the Seimas established that, after the Law on Amending Article 29 of the Law on the Provision of Information to the Public of 5 December 1996 has come into force, the powers of the members of the Council of the National Radio and Television of Lithuania who were appointed by the President of the Republic and the Seimas shall cease. The petitioner maintains that by discontinuing the authorisations of the Council members who had been appointed by the President of the Republic, the Seimas violated the powers of the President of the Republic.

Item 5 of Article 67 of the Constitution stipulates that the Seimas shall “form State institutions provided by law, and shall appoint and dismiss their chief officers”. In the legal doctrine, the state institution is treated as a state office through which the authorities of the state are accomplished. Thus, the state institution is a constituent part of the mechanism by means of which state functions are implemented. State functions are implemented through state officials—officers who work in state institutions. The legal status of officials is defined by special legal norms which establish procedures for accepting for the civil service, the adherence to such procedures, as well as the rights, duties and responsibilities, and termination of service relations. One should note that specific requirements are applied to officials, and, along with that, respective guarantees are provided for them.

Upon adoption of the Law on the Provision of Information to the Public, as well as the Law on the National Radio and Television of Lithuania, the LRT lost the status of a state institution. Paragraph 1 of Article 8 of the latter law additionally stipulates that the members of the Seimas, the Government, the Commission of Radio and Television, as well as the persons who are linked with radio and television stations by contract ties, as well as those working at the LRT, may not be members of the LRT Council. Thus, the LRT Council is not a constituent part of the authorities of the state. Nor is it a state institution under Item 5 of Article 67 of the Constitution. Therefore, the status of its directing body—the Council—is not equivalent to that of a state institution, while the legal situation of a Council member is not equivalent to that of a state official or state officer. Thus, the members of the LRT Council are not applied the norms as to the termination of service relations, nor do they make use of the guarantees established for state officers.

In view of the arguments set forth, the conclusion should be drawn that the Seimas did not violate the constitutional principle of separation of powers, therefore, the Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public is in compliance with the Constitution.

2. On the compliance of the Seimas Resolution “On Dismissing V. Nikitinas from the Post of the Prosecutor General” of 25 February 1997 with the Constitution.

2.1. The functions of prosecutors have been established by Article 118 of Chapter IX “The Court” of the Constitution. Thus, prosecutors are treated therein as a constituent part of the judiciary. Therefore, in implementing the reform of the Prosecutor’s Office, its functions and structure were being changed. Even though the Constitution does not particularly indicate as to by whom and under what procedures prosecutors may be appointed and dismissed, however, one should assume that in this case the legislature is bound by the peculiarities of formation of the judiciary.

In implementing these constitutional provisions, it was established in Paragraph 1 of Article 66 of the Law on Courts (wording of 20 October 1994): “The Prosecutor General shall be appointed and dismissed by the Seimas of the Republic of Lithuania on the recommendation of the President of the Republic”. Paragraph 3 of Article 11 of the Law on the Prosecutor’s Office (wording of 3 November 1994) prescribed: “The Prosecutor General shall be appointed for the term of 7 years and dismissed by the Seimas of the Republic of Lithuania on the recommendation of the President of the Republic”.

The Seimas, by its resolution of 21 December 1994, conforming to Article 118 of the Constitution, as well as taking into consideration the President of the Republic decree of 15 December 1994, appointed V. Nikitinas Prosecutor General of the Republic of Lithuania.

The President of the Republic, by his decree of 17 February 1997, recommended that the Seimas dismiss V. Nikitinas from the post of the Prosecutor General, and commission the deputy Prosecutor General A. Paulauskas to temporarily act as the Prosecutor General of the Republic of Lithuania until a new Prosecutor General is appointed.

By its resolution of 25 February 1997, the Seimas dismissed V. Nikitinas from the post of the Prosecutor General (Article 1), and commissioned him to temporarily act as the Prosecutor General until a new Prosecutor General is appointed (Article 2). The petitioner contends that it was this part (Article 2) of the legal act by which the prerogative of the President of the Republic to recommend a person to act as the Prosecutor General was violated.

2.2. One of the arguments of the petitioner is that the Seimas has limited the right of legislative initiative at the Seimas pertaining to the President of the Republic.

Paragraph 1 of Article 69 of the Constitution provides: “Laws shall be enacted in the Seimas in accordance with the procedure established by law.” These procedures are regulated by the Statute of the Seimas which has the force of law, and, particularly, by Part V thereof which is entitled “The Procedure of Law-making”. This part of the Statute particularises the right of the subjects (Seimas members, the President of the Republic, the Government, 50,000 citizens who have the right to vote) who are established by Article 68 of the Constitution to the right of legislative initiative to submit draft legal acts. The right of legislative initiative is equal to its every subject, and it is being implemented by submitting a concrete draft law to the parliament, or by formulating in writing a new fundamental idea concerning law-making. After an appropriate subject has submitted a draft law, the process of law-making begins. Then a duty occurs for the legislative institution—the Seimas—to begin to deliberate about the presented draft law or the idea of the project of the law. After this, the other parts of the stages of the legislation process as provided for in the Statute ensue.

According to the legal doctrine, as well as the content of the norms of the Statute of the Seimas, the right of legislative initiative is linked with creative activities of law but not with appointment of state officials. Thus, in this respect, the Seimas did not violate the right of legislative initiative of the President of the Republic. The President of the Republic, by recommending a person to temporarily act as the Prosecutor General, was accomplishing not his right of legislative initiative but another one—to present candidatures of state officials to the Seimas.

2.3. The analysis of the constitutional norms allows drawing the conclusion that when officials are being appointed, it is always indicated, as a rule, as to what subject is entitled to present candidatures. For instance, Article 84 of the Constitution provides that the President of the Republic shall propose to the Seimas candidatures for Supreme Court judges, Constitutional Court judges, the Auditor General, the Chairperson of the Board of the Bank of Lithuania, etc. In all other cases the subjects, entitled to propose candidatures for the posts of officials that are to be appointed, are indicated in laws. The fact that appointment of state officials is a special parliamentary procedure is consolidated in Chapter 32 of the Statute of the Seimas. Therein possible subjects who are entitled to propose candidatures for the state official are also provided for. Paragraph 1 of Article 203 of the Statute prescribes that the persons “who may present candidatures for these posts shall be determined by the Constitution and respective laws”.

As mentioned in this ruling of the Constitutional Court, the Constitution does not particularly indicate as to who may submit candidatures for the Prosecutor General. At the time of the adoption of the impugned resolution, the exclusive right of the President of the Republic to recommend the Seimas to appoint or dismiss the Prosecutor General was entrenched in both the Law on Courts, as well as the Law on the Prosecutor’s Office.

Until the law is valid, it is mandatory for everyone, including the legislature. In its ruling of 8 November 1993, the Constitutional Court held that the self-dependence of the Seimas is within its competence established in the Constitution as well as is limited by its duty to act in compliance with the Constitution and valid laws. To observe their requirements, as well as those of the Statute of the Seimas, which has the force of law, is the constitutional duty of the Seimas and every Seimas member.

When one assesses the lawfulness of the impugned Seimas resolution, the fact is of essential importance whether the appointment of a state official to act temporarily should be accomplished under the same procedure as his appointment to act permanently. The representative of the Seimas, the party concerned, maintains in the case at issue that the procedure of appointment to temporarily act in a certain position is not regulated by law. Therefore, he concludes that, in the absence of legal regulation, the Seimas was entitled to adopt a free decision.

The Constitutional Court notes that these arguments are not grounded ones. The appointment to temporarily act as the Prosecutor General and the appointment to permanently act as the Prosecutor General are tightly interconnected. The adoption of a person to temporarily act as the Prosecutor General meant that he acquired all the prerogatives of the Prosecutor General, including procedural ones. Thus, the conclusion should be drawn that the same subject had to recommend that a certain person be appointed to temporarily act as the Prosecutor General, who was entitled to recommend that the Seimas approve a certain person Prosecutor General.

Under then valid Law on Courts and the Law on the Prosecutor’s Office, the President of the Republic was entitled to submit candidatures for the Prosecutor General to the Seimas. Thus, the Seimas could appoint a person to act as the Prosecutor General only in case there existed a recommendation of the President of the Republic. By his decree the President of the Republic proposed that a respective person should act as the Prosecutor General. The Seimas had to deliberate upon the said candidature and was entitled to either approve or reject him. However, the Seimas, on the grounds of the motion of a Seimas member, appointed another person to act as the Prosecutor General, thereby violating the powers of the President of the Republic which had been established by the aforesaid laws.

In view of the foregoing, the conclusion should be drawn that Item 2 of the Seimas Resolution “On Dismissing V. Nikitinas from the Post of the Prosecutor General” contradicts Paragraph 1 of Article 5 and Paragraph 4 of Article 89 of 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:

1. To recognise that the Republic of Lithuania’s Law on the Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public is in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Item 2 of the Resolution of the Seimas of the Republic of Lithuania “On Dismissing V. Nikitinas from the Post of the Prosecutor General” of 25 February 1997 contradicts Paragraph 1 of Article 5 and Paragraph 4 of Article 89 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

 

Teodora Staugaitienė     Juozas Žilys