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On the opportunity of soldiers to apply to court in cases of dismissal from service

Case No. 32/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 48 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE ORGANISATION OF THE NATIONAL DEFENCE SYSTEM AND MILITARY SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

2 July 2002

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Romualdas Varslauskas, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representative of the party concerned, the Seimas of the Republic of Lithuania

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 June 2002, in its public hearing, considered case No. 32/2000 subsequent to the petition of the Higher Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 2 of Article 48 of the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts, was in compliance with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Higher Administrative Court, the petitioner, was considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 2 of Article 48 of the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service (hereinafter also referred to as the Law) that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts (wording of 7 July 1999; Official Gazette Valstybės žinios, 1999, No. 64-2069) was in compliance with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.

II

The petition of the petitioner is based on the following arguments.

Paragraph 1 of Article 30 of the Constitution provides that any person whose constitutional rights or freedoms are violated shall have the right to appeal to court, while Paragraph 1 of Article 109 of the Constitution prescribes that, in the Republic of Lithuania, the courts shall have the exclusive right to administer justice. However, it is provided in Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts. In the opinion of the petitioner, thus, the right of individuals established in Paragraph 1 of Article 30 of the Constitution to appeal to court is restricted and the provision of Paragraph 1 of Article 109 of the Constitution that, in the Republic of Lithuania, the courts shall have the exclusive right to administer justice is violated.

III

In the course of the preparation of the case for the judicial consideration, written explanations were received from the representative of the party concerned, the Seimas, P. Petkevičius, a senior consultant to the Legal Department of the Office of the Seimas.

The representative of the party concerned maintains that the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts is entrenched in the Law for the purpose that the bases of dismissal of soldiers from service established in Paragraph 1 of Article 38, and Items 10 and 12 of Paragraph 2 of Article 38 are very important, well-founded and may not be disputed, as it is necessary to terminate the service contract with the soldier on the said bases. In the opinion of P. Petkevičius, otherwise, the interests of military service might be impeded and significant damage might be inflicted on the national defence system. According to the representative of the party concerned, the court may decide only the dispute concerning whether one followed the procedure of dismissal from the military service which is established by means of legal acts, i.e. whether the question of dismissal from the military service was decided by competent entities, whether in the course of its adoption one grounded one’s decision on necessary facts, data, evidence and other corresponding material, whether the procedural actions were performed while duly following all the requirements established by means of legal acts.

The representative of the party concerned maintains that the Law on the Organisation of the National Defence System and Military Service provides for the right of an individual to lodge an appeal with the court against the procedure of dismissal from military service and thus to defend his rights, therefore, the said provision of Paragraph 2 of Article 48 of the Law is in compliance with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from L. Linkevičius, Minister of Defence of the Republic of Lithuania, and R. Melnikienė, Vice-minister of Social Security and Labour.

V

At the Constitutional Court hearing, the representative of the party concerned R. Varslauskas virtually reiterated the arguments set forth in the written explanations by the representative of the party concerned P. Petkevičius.

The Constitutional Court

holds that:

I

On the compliance of Paragraph 2 of Article 48 of the Law on the Organisation of the National Defence System and Military Service with Paragraph 1 of Article 30 of the Constitution.

1. The petitioner requests the Constitutional Court to investigate whether the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts was in compliance with Paragraph 1 of Article 30 of the Constitution.

2. Paragraph 1 of Article 30 of the Constitution provides:

Any person whose constitutional rights or freedoms are violated shall have the right to appeal to court.”

The constitutional principle of judicial protection is established in Paragraph 1 of Article 30 of the Constitution. In its ruling of 18 April 1996, the Constitutional Court held that in a democratic state the court is the main institutional guarantee of human rights and freedoms and that the constitutional principle of judicial protection is universal.

It needs to be noted that, under the constitution, the legislature has a duty to establish such legal regulation whereby all disputes regarding any violation of rights or freedoms of individuals may be decided in court. An out-of-court dispute settlement procedure may also be provided for. However, it is not permitted to establish any such legal regulation that would deny the right of an individual who believes that his rights or freedoms have been violated to defend his rights and freedoms in court.

In its 8 May 2000 ruling, the Constitutional Court held that a person is guaranteed the protection of his violated right in court regardless of the legal status of this person and that the violated rights and legitimate interests of persons must be protected in court irrespective of the fact whether they are directly established in the Constitution or not.

3. The relations of the organisation of the national defence system and military service have their own peculiarities. Taking account of these peculiarities, it is permitted to establish by law various ways of resolving disputes regarding violation of the rights and freedoms, including an out-of-court settlement procedure of such disputes. However, the peculiarities of the relations of the organisation of the national defence system and military service may not deny the constitutional right of persons to appeal to court to defend their rights and freedoms.

4. It has been mentioned that Paragraph 2 of Article 48 of the Law provides that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts. Such legal regulation means that in cases when the service contract with the professional soldier or that with the volunteer soldier has to be or may be terminated and/or the soldier is dismissed from service in the national defence system, the dismissed soldier may lodge an appeal with the court regarding the violation of only the dismissal procedure established by means of legal acts. Thus, under the impugned provision of Paragraph 2 of Article 48 of the Law, the soldier is prohibited from appealing to court as regards the reasonableness of his dismissal from military service. Thereby the constitutional right of the person to appeal to court is violated.

5. Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts conflicts with Paragraph 1 of Article 30 of the Constitution.

II

On the compliance of Paragraph 2 of Article 48 of the Law on the Organisation of the National Defence System and Military Service with Paragraph 1 of Article 109 of the Constitution.

1. The petitioner requests the Constitutional Court to investigate whether the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts was in compliance with Paragraph 1 of Article 109 of the Constitution.

2. Paragraph 1 of Article 109 of the Constitution provides:

In the Republic of Lithuania, the courts shall have the exclusive right to administer justice.”

The Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution). Paragraph 1 of Article 109 of the Constitution is inseparably linked with Paragraph 1 of Article 30 of the Constitution in which the right of any person to appeal to court concerning the protection of his violated rights is entrenched, with the principle of a state under the rule of law enshrined in the Constitution, and with the innate right of individuals to justice. Under Paragraph 1 of Article 109 of the Constitution, in the Republic of Lithuania, the courts shall have the exclusive right to administer justice.

3. It has been held in this ruling of the Constitutional Court that the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts conflicts with Paragraph 1 of Article 30 of the Constitution.

After it has been held that, by means of the impugned legal regulation established in Paragraph 2 of Article 48 of the Law, the constitutional right of persons to appeal to court is violated, it must be held, alongside, that the right of persons to justice is infringed, the opportunities of courts to administer justice have become limited, thus, Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law are violated.

4. Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts conflicts with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the provision of Paragraph 2 of Article 48 of the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service that in cases of dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only the dismissal procedure established by means of legal acts conflicts with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas