Lt

On the interpretation of the provisions of the Constitutional Court’s rulings of 9 May 2006 and 22 October 2007 related to the extension of the powers of judges

Case No. 13/04-21/04-43/04, 38/04-39/04

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE PROVISIONS OF ITEM 15.3.1.1 OF CHAPTER II OF THE REASONING PART OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 9 MAY 2006 AND ITEM 12.2 OF CHAPTER IV OF THE REASONING PART OF THE RULING OF 22 OCTOBER 2007

30 June 2010
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 29 June 2010, considered petitions of the Šiauliai Regional Court and the Supreme Court of Lithuania requesting to construe certain provisions of Item 15.3.1.1 of Chapter II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 9 May 2006 and Item 12.2 of Chapter IV of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 22 October 2007.

By means of the Constitutional Court decision “On Joining the Petitions” of 14 June 2010, petition No. 1B-16/2010 of the Šiauliai Regional Court, a petitioner, and petition No. 1B-28/2010 of the Supreme Court of Lithuania, a petitioner, were joined into one case.

The Constitutional Court

has established:

1. In constitutional justice case No. 13/04-21/04-43/04, the Constitutional Court adopted the Ruling “On the compliance of Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5 and 6 (wording of 24 January 2002) of Article 56, Paragraph 3 (wording of 28 January 2003) of Article 57, Paragraph 4 (wording of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 72, Paragraph 2 (wording of 24 January 2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph 1 (wording of 24 January 2002) of Article 75, Paragraph 2 (wording of 21 January 2003) of Article 76, Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph 2 (wording of 21 January 2003) of Article 78, Paragraph 2 (wording of 24 January 2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 90, Paragraphs 2 and 5 (wording of 24 January 2002) of Article 119, Items 3 and 4 (wording of 24 January 2002) of Article 120, Paragraph 2 (wording of 24 January 2002) of Article 128 of the Republic of Lithuania Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3 (wording of 18 April 1995) of Article 18 of the Republic of Lithuania Law ‘The Statute of the Supreme Court of Lithuania’, and of Article 1 of Decree of the President of the Republic of Lithuania No. 2048 ‘On the Dismissal of a Judge of the Regional Court from Office’ of 10 February 2003 with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2006, No. 51-1894; hereinafter referred to as the Constitutional Court ruling of 9 May 2006).

2. On 22 October 2007, in constitutional justice case No. 38/04-39/04 the Constitutional Court adopted the Ruling “On the compliance of Article 4 (wordings of 2 July 2002, 4 November 2004, 19 May 2005 and 8 June 2006) of the Republic of Lithuania Law on the State Pensions of Judges with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2007, No. 110-4511; hereinafter referred to as the Constitutional Court ruling of 22 October 2007).

3. The Šiauliai Regional Court, a petitioner, requests inter alia to construe whether the provision “the judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge.

The Šiauliai Regional Court, a petitioner, requests also to construe whether:

the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that the judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic on the extension of powers of the judge;

the provision that the judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, as long as the cases indicated in the decree of the President of the Republic are not finished, such a judge may consider (be a judge-rapporteur, a judge, and a member of the college) also other cases, which are not indicated in the decree of the President of the Republic on the extension of powers of the judge.

4. The Supreme Court of Lithuania, a petitioner, requests inter alia to construe whether the provision “The Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 means that the powers of such a judge (a judge-rapporteur, a judge, and a member of the college) to administer justice, which are entrenched in the Constitution, are limited by the cases indicated in the decree of the President of the Republic on the extension of powers of such a judge.

The Supreme Court of Lithuania, a petitioner, requests inter alia to construe whether the provisions “<...> at the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 mean that such a judge (a judge-rapporteur, a judge, and a member of the college), as a full-fledged judge, also has the powers, entrenched in the Constitution, to administer justice and in other cases, which are not indicated in the decree of the President of the Republic on the extension of powers of the judge, but which are additionally received for consideration, until final decisions therein are adopted or the consideration thereof is postponed.

The Supreme Court of Lithuania, a petitioner, also requests to construe whether the judge who has reached the age of 65 years and whose powers have been extended by the decree of the President of the Republic until the consideration of the cases indicated in the decree is finished, in the case when the consideration of the cases indicated in the decree is finished, but the said judge, as a full-fledged judge, is a judge-rapporteur, a judge, or a member of the college in other cases received for consideration, has the powers, entrenched in the Constitution, to administer justice in the said other cases, which are not indicated in the decree of the President of the Republic and the consideration of which is not finished.

The Constitutional Court

holds that:

I

1. The powers of the Constitutional Court to officially construe its own rulings are entrenched in the Law on the Constitutional Court (Article 61). 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. Under Item 158 of the Rules of the Constitutional Court of the Republic of Lithuania, upon announcement of a final act of the Constitutional Court at a public hearing of the Constitutional Court, the General Division of the Constitutional Court, not later than within 2 days of the date of adoption of the said documents, sends copies thereof to inter alia the President of the Supreme Court of Lithuania. Thus, under Paragraph 1 of Article 61 of the Law on Constitutional Court, the Supreme Court of Lithuania has the right to apply to the Constitutional Court with a petition requesting to construe a Constitutional Court ruling.

2. The petition of the Šiauliai Regional Court, a petitioner, requesting to construe the corresponding provisions of the Constitutional Court rulings, was accepted for consideration by the Constitutional Court decision of 22 April 2010.

3. A decision concerning construction of a Constitutional Court ruling shall be adopted at a Constitutional Court sitting as a separate document (Paragraph 2 of Article 61 of the Law on the Constitutional Court).

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 other final acts is to disclose the contents and meaning of corresponding provisions of a Constitutional Court ruling or 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. The Constitutional Court has held more than once that a ruling of the Constitutional Court is integral; the operative (resolving) part of a ruling of the Constitutional Court is based upon the arguments of the reasoning part; while construing its ruling, the Constitutional Court is bound both by the content of the part of resolution and that of reasoning of its ruling; the decision adopted concerning construction of a Constitutional Court ruling is inseparable from the Constitutional Court ruling.

6. 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 this 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 cannot 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 construed ruling 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.

The Constitutional Court has also held more than once that no official constitutional doctrinal provision of a Constitutional Court ruling or its other final act may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that Constitutional Court ruling or its other final act, in other Constitutional Court acts, as well as with other provisions (explicit and implicit) of the Constitution.

7. It has also been held more than once that the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal, also means that the Constitutional Court rulings, conclusions and decisions by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

II

1. The Šiauliai Regional Court and the Supreme Court of Lithuania, the petitioners, request to construe the official constitutional doctrinal provisions which are related with extension of powers of the judge and which are set forth in the Constitutional Court rulings of 9 May 2006 and 22 October 2007.

2. It needs to be noted that the provisions of the Constitutional Court rulings, the construction of which is being requested by the Šiauliai Regional Court and the Supreme Court of Lithuania, the petitioners, as well as the questions raised by the petitioners are related, therefore, they are to be construed in conjunction.

2.1. The Šiauliai Regional Court, the petitioner, requests inter alia to construe whether the provision “the judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge.

2.2. The Šiauliai Regional Court, a petitioner, requests inter alia to construe whether:

the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that the judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic on the extension of powers of the judge;

the provision that the judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, as long as the cases indicated in the decree of the President of the Republic are not finished, such a judge may consider (be a judge-rapporteur, a judge, and a member of the college) also other cases, which are not indicated in the decree of the President of the Republic on the extension of powers of the judge.

2.3. The Supreme Court of Lithuania, a petitioner, requests inter alia to construe whether the provision “The Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 means that the powers of such a judge (a judge-rapporteur, a judge, and a member of the college) to administer justice, which are entrenched in the Constitution, are limited by the cases indicated in the decree of the President of the Republic on the extension of powers of such a judge.

2.4. The Supreme Court of Lithuania, a petitioner, requests inter alia to construe whether the provisions “<...> at the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 mean that such a judge (a judge-rapporteur, a judge, and a member of the college), as a full-fledged judge, also has the powers, entrenched in the Constitution, to administer justice and in other cases, which are not indicated in the decree of the President of the Republic on the extension of powers of the judge, but which are additionally received for consideration until final decisions therein are adopted or the consideration thereof is postponed.

2.5. The Supreme Court of Lithuania, a petitioner, requests inter alia to construe whether the judge who has reached the age of 65 years and whose powers have been extended by the decree of the President of the Republic until the consideration of the cases indicated in the decree is finished, in the case when the consideration of the cases indicated in the decree is finished, but the said judge, as a full-fledged judge, is a judge-rapporteur, a judge, or a member of the college in other cases received for consideration, has the powers, entrenched in the Constitution, to administer justice in the said other cases, which are not indicated in the decree of the President of the Republic and the consideration of which is not finished.

2.6. The provisions of the Constitutional Court ruling of 9 May 2006, construction of which is requested by the Šiauliai Regional Court and the Supreme Court of Lithuania, the petitioners, constitute part of the text of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006, wherein it is inter alia held: “<...> The Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted).”

2.7. The provisions of the Constitutional Court ruling of 22 October 2007, construction of which is requested by the Šiauliai Regional Court and the Supreme Court of Lithuania, the petitioners, constitute part of the text of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007, wherein it is inter alia held:

<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have.”

3. Thus, these petitions of the Šiauliai Regional Court and the Supreme Court of Lithuania, the petitioners, requesting to construe the corresponding provisions of the Constitutional Court rulings, are to be treated as the requests to construe whether:

the provision “The Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 as well as the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia mean that the judge, during the period of the extension of his powers, may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases, which are assigned to his consideration after his powers have been extended;

the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has to receive the same workload (inter alia because of the fact that in the said court the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia mean that the judge whose powers have been extended may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) in other cases (which are assigned for his consideration after his powers have been extended), inter alia also after the consideration of certain cases, the consideration of which was not finished at the time (on the day) when powers of that judge were extended, has already been finished.

III

1. While construing the indicated provisions of the Constitutional Court ruling of 9 May 2006, it needs to be noted that, in the constitutional justice case wherein the said Constitutional Court ruling was adopted, investigation was carried out inter alia regarding the compliance of Paragraph 3 of Article 57 (wording of 28 January 2003) of the Law on Courts with the Constitution. The following was prescribed in the said paragraph: when a judge of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court reaches the age of 65 years, his powers may be extended by the institution which appointed him until he reaches the age of 70 years; in such cases the judge wishing to have an extension of his powers shall apply to the President of the Republic; the issue in respect of the extension of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in the Law on Courts. In the aforementioned constitutional justice case subsequent to the petitions of a group of Members of the Seimas and the Court of Appeal of Lithuania, the petitioners, while deciding whether Paragraph 3 of Article 57 (wording of 28 January 2003) of the Law on Courts is not in conflict with the Constitution, the Constitutional Court pointed out that, first of all, it is necessary to establish whether the institute of the extension of powers of the judge entrenched in this paragraph is in line with the principle of the independence of the judge, which is inter alia entrenched in the Constitution, whether this institute does not create preconditions to influence in any way, even indirectly, administration of justice and, thus, to violate the principle of the independence of the judge.

2. In the Constitutional Court ruling of 9 May 2006, the provision “If the judge’s term of powers expires while a case is still pending, his powers are extended till the consideration of the case is finished or its consideration is postponed” of Paragraph 5 (wording of 24 January 2002) of Article 57 of the Law on Courts was assessed by the Constitutional Court as constitutionally grounded. Paragraph 3 of Article 57 (wording of 28 January 2003) of the Law on Courts, which entrenched the possibility to extend powers of a judge of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court who has reached the age of 65 years until he reaches the age of 70 years, in the aforementioned Constitutional Court ruling was recognised to be in conflict with the Constitution.

3. It has been mentioned that no official constitutional doctrinal provision of a Constitutional Court ruling or its other final act may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that Constitutional Court ruling or its other final act, in other Constitutional Court acts, as well as with other provisions (explicit and implicit) of the Constitution.

4. The official constitutional doctrine related with the term of powers of the judge (inter alia extension thereof) was developed not only in the Constitutional Court ruling of 9 May 2006, but also in other Constitutional Court acts, inter alia the Constitutional Court ruling of 22 October 2007, construction of the corresponding provisions of which is also requested by the petitioners. Therefore, the construed provisions of the Constitutional Court rulings of 9 May 2006 and 22 October 2007 are to be construed in conjunction with one another, by taking account of the whole context of the official constitutional doctrine, inter alia other constitutional doctrinal provisions that are set forth in the indicated rulings.

5. The Constitutional Court has held more than once that one of the guarantees of the independence of the judge entrenched in the Constitution is the guarantee of the term of his powers (Constitutional Court rulings of 6 December 1995, 21 December 1999, 12 July 2001, and 9 May 2006). Only an independent court, thus, only such whose judges are guaranteed the inviolability of the term of their office may be considered as one administering justice as required by the Constitution (Constitutional Court ruling of 9 May 2006). The guarantee of the inviolability of the term of powers of the judge is also important because of the fact that a judge, whatever political forces are in power, must remain independent and not conciliate to the possible change of political forces (Constitutional Court rulings of 6 December 1995, 21 December 1999, and 9 May 2006). The principle of the independence of the judge, entrenched in the Constitution, implies only such legislative regulation of the term of powers of the judge that, when appointing a judge, he would know the term of his powers (until the time established by law or until he reaches the pensionable age established by law); the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion (Constitutional Court rulings of 9 May 2006, 22 October 2007, 20 December 2007, and decision of 15 May 2009).

Such legal regulation when the possibility to extend the term of powers of judges upon their expiration (irrespective of the term for which powers of the judge are extended and of the level of the court powers of whose judge are extended) is provided may create preconditions for other persons to try to influence the judge directly or indirectly in order that he, when seeking extension of his powers, would make certain decisions in the cases under his consideration; such legal regulation is to be assessed as enabling someone to induce the judge to consider cases and adopt decisions in them not only by obeying the law, as required by the Constitution (Paragraph 3 of Article 109), but also by heeding the fact how the decisions adopted in the cases under his consideration will influence the possibility to extend his powers in the future. In other words, such legal regulation creates preconditions for a judge to adopt the decisions in the cases under his consideration which would correspond not to the concept of the justice of the judge himself, but to the concept of the justice of other persons (Constitutional Court rulings of 9 May 2006, 22 October 2007, and decision of 15 May 2009).

6. In its rulings of 9 May 2006 and 22 October 2007, the Constitutional Court also held that the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and to violate certain constitutional values.

In its ruling of 9 May 2006, the Constitutional Court also held: in every case on such extension of powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if powers of a justice of the Supreme Court are extended) a Seimas resolution must be passed; in every such case, the advice of the special institution of judges provided for by law and specified in Paragraph 5 of Article 112 of the Constitution on the extension of powers is necessary; such advice of the said special institution of judges to extend powers of the judge also means its advice to dismiss the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished; powers of the judge must be discontinued under the established procedure when the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished; when this legal fact, to which the extension of powers of the judge is related, happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law and specified in Paragraph 5 of Article 112 of the Constitution regarding the dismissal of the judge from office when his powers have expired or when he has reached the pensionable age established by law once again (as the corresponding advice has already been received).

Such legal regulation, when the possibility is provided to extend powers of judges upon expiration of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of the independence of the judge and courts entrenched in the Constitution, with Paragraph 2 of Article 109 of the Constitution, under which, while administering justice, judges and courts are independent, with Paragraph 3 of this article, in which it is established that, while considering cases, judges obey only the law, as well as with the constitutional principle of a state under the rule of law (Constitutional Court ruling of 9 May 2006).

7. The official constitutional doctrine related with extension of powers of the judge was developed in the Constitutional Court ruling of 22 October 2007, wherein it is held: at the time when the consideration of the cases, to the consideration of which the extension of powers of the judge is related, is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges; thus, he must receive the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have.

8. While construing whether the indicated provisions of the Constitutional Court rulings of 9 May 2006 and 22 October 2007 mean that the judge, during the period of the extension of his powers, may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases, which are assigned for his consideration after his powers have been extended, as it has been mentioned in this decision, it needs to be noted: such legal regulation when the possibility is provided to extend powers of judges upon expiration of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of the independence of the judge and courts entrenched in the Constitution; however, the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and to violate certain constitutional values; in every case on such extension of powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if powers of a justice of the Supreme Court are extended) a Seimas resolution must be passed.

Thus, under the official constitutional doctrine, inter alia formulated in the Constitutional Court rulings of 9 May 2006 and 22 October 2007, the Constitution allows, by means of the law, to establish only exceptional legal regulation of extension of powers of the judge. In this context it needs to be noted that, as mentioned, when appointing a judge, he must know the term of his powers (until the time established by law or until he reaches the pensionable age established by law). Therefore, work of the judge (inter alia assignment of cases for the judge’s consideration) must be organised so that on the day of the expiration of powers of the judge he would have a possibility to have finished the consideration of the cases assigned to him.

Thus, extension of powers of the judge is allowed only in exceptional cases, i.e. when, upon expiry of the term of powers of the judge or upon reaching the pensionable age established by law and without extending his powers, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and to violate certain constitutional values. For example, the decision of cases would slow down, if powers of the judge were not extended inter alia in those cases when on the day of the expiration of his powers the judge is finishing the consideration of the complicated cases, wherein most procedural actions have been completed and the time is required for completion of certain final actions, inter alia adoption of the final decision (drawing up and promulgating thereof).

It has been mentioned that in every case on such extension of powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if powers of a justice of the Supreme Court are extended) a Seimas resolution must be passed.

9. While construing whether the indicated provisions of the Constitutional Court rulings of 9 May 2006 and 22 October 2007 mean that the judge, during the period of the extension of his powers, may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases, which are assigned for his consideration after his powers have been extended, as it has been mentioned in this decision, it needs to be noted: the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases is finished (final decisions therein will be adopted); while holding this office he is a full-fledged judge; he must receive the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court; and he must be paid the same remuneration as other judges of the corresponding court; he also has the same social (material) guarantees which the judges of the corresponding court have; at that time such a judge, whose powers have been extended on the aforesaid basis, as such an exception is allowed by the Constitution itself, may not be granted the social (material) guarantees of the judge which are established (and applied) to judges upon expiry of their powers.

Thus, the judge whose powers have been extended must, for a certain period of time (until the term of the extension of his powers has not expired), still receive the same workload as other judges of the corresponding court, i.e. such a judge may consider (until the term of the extension of his powers has not expired) also such cases the consideration of which is started after his powers, upon the expiry of the term of his office or upon reaching the pensionable age established by law, have been extended.

10. Taking account of the arguments set forth, one is to draw a conclusion that the provision “The Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 as well as the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia mean that the judge whose powers have been extended must receive the same workload as other judges of the corresponding court and, during the period of the extension of his powers, he may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases, which are assigned for his consideration after his powers have been extended.

11. While construing whether the provisions of the Constitutional Court ruling of 22 October 2007, indicated by the Supreme Court of Lithuania, a petitioner, mean that the judge whose powers have been extended may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) in other cases (which are assigned for his consideration after his powers have been extended), inter alia also after the consideration of certain cases, the consideration of which was not finished at the time (on the day) when powers of that judge were extended, has already been finished, it needs to be noted that, as it was held in the Constitutional Court ruling of 9 May 2006, the judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted). Thus, the expiration of the term of the extension of powers of the judge is linked to the end of the cases the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, inter alia to the adoption of final decisions in these cases or postponement of the consideration of these cases.

It has been mentioned that, as it was held in the Constitutional Court ruling of 9 May 2006, the advice of the special institution of judges provided for by law and specified in Paragraph 5 of Article 112 of the Constitution to the President of the Republic on the extension of powers of the judge also means its advice to dismiss the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished; powers of the judge must be discontinued under the established procedure as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished; when this legal fact, to which the extension of powers of a judge is related, happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law and specified in Paragraph 5 of Article 112 of the Constitution regarding the dismissal of the judge from office when his powers have expired or when he has reached the pensionable age established by law once again (as the corresponding advice has already been received).

Thus, the judge, when the legal fact to which the extension of his powers is related happens, i.e. when he finishes the consideration of the cases the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law and for the period of the consideration whereof his powers have been extended, must be dismissed from office. Powers of the judge must be discontinued under the established procedure as soon as the aforementioned legal fact happens—the consideration of the cases to the consideration of which the term of the extension of powers of the judge is related is finished. Consequently, such a judge must be dismissed from office and he may no longer consider any other cases (inter alia the cases which were assigned for his, as a full-fledged judge, consideration during the period of the extension of his powers and the consideration of which has not been finished until the day when the consideration of the cases, to the consideration of which the term of the extension of his powers is related, is finished).

12. Taking account of the arguments set forth, one is to draw a conclusion that the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has to receive the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia mean that the judge whose powers have been extended may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases (which are assigned for his consideration after his powers have been extended) but only until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when powers of that judge were extended, is finished.

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:

1. To construe that the provision “The Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 (Official Gazette Valstybės žinios, 2006, No. 51-1894) as well as the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 (Official Gazette Valstybės žinios, 2007, No. 110-4511) inter alia mean that the judge, during the period of the extension of his powers, may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases which are assigned for his consideration after his powers have been extended.

2. To construe that the provisions “<...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has to receive the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 (Official Gazette Valstybės žinios, 2007, No. 110-4511) inter alia mean that the judge whose powers have been extended may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases (which are assigned for his consideration after his powers have been extended) but only until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when powers of that judge were extended, is finished.

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: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis