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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION

ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER PARAGRAPH 8 (WORDING OF 14 JULY 2008) OF ARTICLE 46 OF THE REPUBLIC OF LITHUANIA LAW ON PROVISION OF INFORMATION TO THE PUBLIC AND PARAGRAPH 4 (WORDING OF 11 JUNE 2009) OF ARTICLE 2 OF THE REPUBLIC OF LITHUANIA LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

16 November 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—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition (No. 1B-125/2010) of the Vilnius Regional Administrative Court, the petitioner, whether Paragraph 8 (wording of 14 July 2008) of Article 46 of the Republic of Lithuania Law on Provision of Information to the Public to the extent that it is established that the producers or disseminators of public information who disagree with the decisions of the Ethics Commission of Lithuanian Journalists and Publishers, i.e. an organisation which is not a legal person, which is not administratively suable and does not have administrative capacity, may apply to the Vilnius Regional Administrative Court regarding such decisions, as well as whether Paragraph 4 (wording of 11 June 2009) of Article 2 of the Republic of Lithuania Law on the Proceedings of Administrative Cases to the extent that it does not establish any legal regulation whereby it would be possible to decide on administrative suability and administrative capacity of a subject of public administration, which is a party in administrative proceedings, are not in conflict 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.

The Constitutional Court

has established:

The Vilnius Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting “to investigate:

1) whether Paragraph 8 (the 14-07-2008 wording of law No. X-1696) of Article 46 of the Law on Provision of Information to the Public (new wording of the law from 29 August 2000: No. VIII-1905, 11-07-2006, Official Gazette Valstybės žinios, No. 82-3254 (27-07-2006)) to the extent that it is established that the producers or disseminators of public information who disagree with the decisions of the Ethics Commission of Lithuanian Journalists and Publishers, i.e. an organisation which is not a legal person, which is not administratively suable and does not have administrative capacity, may apply to the Vilnius Regional Administrative Court regarding such decisions, was/is not in conflict 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;

2) whether Paragraph 4 (the 11-06-2009 wording of law No. XI-284) of Article 2 of the Law on the Proceedings of Administrative Cases (new wording of the law from 1 January 2001: No. VIII-1927, 19.09.2000, Official Gazette Valstybės žinios, 2000, No. 85-2566 (11.10.2000)) to the extent that it does not establish any legal regulation whereby it would be possible to decide on administrative suability and administrative capacity of subjects of public administration—parties in administrative proceedings—was/is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania”.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests that the Constitutional Court investigate into whether Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public and Paragraph 4 (wording of 11 June 2009) of Article 2 of the Law on the Proceedings of Administrative Cases (hereinafter also referred to as the LPAC) are not in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

2. It needs to be mentioned that the Vilnius Regional Administrative Court, the petitioner, had already applied to the Constitutional Court with an analogous petition (No. 1B-73/2010), which was received at the Constitutional Court on 4 August 2010 and which, by Ordinance of the President of the Constitutional Court No. 2B-223 of 26 August 2010, was returned to the petitioner due to the fact that the petition had not specified any legal arguments substantiating the doubt of the petitioner.

3. Article 67 of the Law on the Constitutional Court provides that the court ruling by which it is applied to the Constitutional Court must contain legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution (Item 5 of Paragraph 2).

3.1. While construing the said item of the Law on the Constitutional Court, the Constitutional Court has held more than once that the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution according to the content of the norms and/or the scope of regulation must be indicated clearly and unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. The petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must also clearly indicate the legal arguments grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the disputed legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner (Constitutional Court decision of 16 April 2004, ruling of 12 December 2005, decisions of 2006 m. March 14 d (case No. 14/03) and 29 March 2006, ruling of 20 December 2007).

3.2. The Constitutional Court has also held more than once that the courts, when applying to the Constitutional Court with a petition requesting to investigate whether a law or other legal act (part thereof) is not in conflict with the Constitution, while arguing their opinion presented in the petition that the law or other legal act (part thereof) is in conflict with the Constitution, may not confine themselves to general reasoning or statements that the law or other legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which disputed articles (paragraphs, items thereof) and to what extent, in their opinion, are in conflict with the Constitution, and to reason their position on the compliance of every disputed provision of the legal act by clearly formulated legal arguments. In the opposite case, the petition of the court requesting to investigate the compliance of the law or other legal act (part thereof) with the Constitution is to be considered as incompliant with the requirements of Article 67 of the Law on the Constitutional Court (Constitutional Court rulings of 12 December 2005, 16 January 2006, and 17 January 2006, decisions of 17 January 2006, 5 July 2007, 6 September 2007, 12 September 2007, and 14 October 2008).

4. Paragraph 1 of Article 69 of the Law on the Constitutional Court prescribes that, by means of its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court (Item 2).

4.1. The Constitutional Court has held that, under the Constitution, the Constitutional Court does not consider whether a law is in compliance with another law (Constitutional Court rulings of 2 April 2001 and 4 March 2003), it does not decide the issues of compatibility and rivalry of legal acts of the same power (Constitutional Court decision of 29 September 1999). If the Constitutional Court is requested to decide the issue of compatibility and rivalry of legal acts of the same legal power, such petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decision of 6 September 2007).

The Constitutional Court has also held that removal of collisions is a prerogative of the legislator (Constitutional Court ruling of 18 November 1994). If the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002, 13 November 2006).

4.2. The Constitutional Court has held that if the laws (parts thereof) do not establish certain legal regulation, the Constitution Court enjoys the constitutional powers to investigate the compliance of these laws (parts thereof) with the Constitution in the cases when due to the fact that the said legal regulation has not been established in particularly those laws (parts thereof) the principles and/or norms of the Constitution might be violated (Constitutional Court ruling of 25 January 2001, decisions of 6 May 2003, 13 May 2003); the petition of the petitioner, which is based on the legislative omission presumed by him, may be accepted and the case may be commenced subsequent to the petition of the petitioner only in the case that the arguments and reasoning are set forth in the petition, which ground that the not established legal regulation must, under the Constitution, be established namely in the part of the legal act indicated by the petitioner (Constitutional Court decision of 16 April 2004).

4.3. Under the Constitution, the Constitutional Court does not decide issues of application of law; such issues are decided by the institution that enjoys powers to apply legal acts; if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002, 13 November 2006, 20 November 2006, and 27 June 2007). The Constitutional Court has also held that the questions of application of law which have not been decided by the legislator are the matter of judicial practice (Constitutional Court ruling of 9 July 1998, decision of 20 November 2006); thus the questions of application of law which have not been decided by the legislator may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof) (Constitutional Court decision of 20 November 2006). The petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 23 September 2002, 20 November 2006).

4.4. The Constitutional Court has also held that the construction of the essence of a legal norm is the duty of the state institution which applies the law (Constitutional Court decision of 11 July 1994).

II

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, inter alia requests to investigate the compliance of Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public with Paragraph 1 of Article 30, Paragraph 1 of Article 130 of the Constitution and the constitutional principle of a state under the rule of law.

2. Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public prescribes: “The producers or disseminators of public information who disagree with the decisions of the Commission may apply to the Vilnius Regional Administrative Court regarding such decisions; however, they must announce them in accordance with the procedure established in Paragraph 7 of this Article.”

Thus, the legislator, while making use of its discretion, in Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public imperatively established that the disputes arising due to decisions adopted by the Ethics Commission of Lithuanian Journalists and Publishers (hereinafter also referred to as the Commission) are under cognisance of the Vilnius Regional Administrative Court.

3. It has been mentioned that the petitioner has applied to the Constitutional Court with an analogous petition repeatedly. The petitioner has supplemented its petition with statements of the scientific doctrine about administrative legal relations and subjects of these relations, however, it in no way substantiated its doubts regarding the constitutionality of the disputed norm, also, it has not presented any clear legal arguments why, in its opinion, the disputed provision of Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public is in conflict with the Constitution.

3.1. In its petition the petitioner maintains that the Commission is an institution of self-regulation of producers and disseminators of public information, which does not enjoy powers to discharge functions of public administration. The Commission adopts decisions on the grounds of the Code of Ethics of Lithuanian Journalists and Publishers, which is approved, amended or supplemented by the meeting of representatives of organisations of journalists and publishers. In the opinion of the petitioner, the Commission is not a subject of public administration. The Commission may not be the respondent in administrative cases and there may not be any administrative legal relations between the Commission and another party to administrative proceedings.

The petitioner holds that the legal regulation whereby one can file complaints against decisions of an institution, which does not enjoy the status of a legal person and which does not discharge the powers of public administration, with the administrative court is in conflict with the scientific doctrine and is not in compliance with the principles of the process. Therefore, in the opinion of the petitioner, the disputed provision may be in conflict also with the constitutional principle of a state under the rule of law, however, it has not presented any arguments substantiating such a doubt.

3.2. The petitioner also doubts as to the compliance of the disputed provision with Paragraph 1 of Article 109 of the Constitution whereby in the Republic of Lithuania, justice shall be administered only by courts. By invoking the scientific doctrine the petitioner presents the notion of justice and general character statements that “administration of justice is defined as a court activity in settling legal disputes”, that “courts administer justice by applying legal norms <...>”, holds that “this principle is important to all branches of law, <...> [it] must be implemented also in the rules of administrative proceedings”, however, it does not present any clear arguments how namely the legal regulation whereby one can file complaints against decisions of the Commission with the administrative court prevents courts from administration of justice.

3.3. The petitioner also requests that the Constitutional Court investigate the compliance of the disputed provision with Paragraph 1 of Article 30 of the Constitution wherein the right of a person to apply to court is entrenched. The petitioner specifies the preconditions for acquisition and implementation of the right to apply to court, where the court must in all cases verify such preconditions, the absence whereof determines the refusal to accept the complaint or dismissal of the case. One of such preconditions is attribution of the dispute to the court. In its petition the petitioner maintains that the court “cannot implement this function [of verification of preconditions]” and cannot “decide whether in a concrete situation there is the precondition for applying to the court as regards the attribution of the case to the court” since the issue of attribution of the case to the court has been decided in Article 8 of Article 46 of the Law on Provision of Information to the Public.

Thus, the arguments of the petitioner regarding the compliance of the disputed provision with Paragraph 1 of Article 30 of the Constitution 30 are not only inconsistent, but also conflicting ones. In its petition the petitioner does not explain how namely the legal regulation whereby the producers or disseminators of public information are granted the right to apply to the Vilnius Regional Administrative Court regarding decisions adopted by the Commission violates the right of a person to apply to court entrenched in Paragraph 1 of Article 30 of the Constitution.

4. In its petition the petitioner has pointed out that, under Paragraph 1 of Article 3 of the LPAC, administrative courts shall settle disputes over issues of law in public administration. Since, in the opinion of the petitioner, the Commission is not and may not be a subject of public administration (since it is not a legal person and does not discharge the powers of public administration), and there may not be any administrative legal relations between the Commission and another party to administrative proceedings, disputes regarding decisions adopted by the Commission may not be considered in an administrative court.

From the argumentation presented by the petitioner it is possible to understand that the petitioner has discerned certain irregularities or rivalry in the legal regulation established in laws (namely in the LPAC and the Law on Provision of Information to the Public), however, it has not substantiated its doubts why, in its opinion, namely the norm of the law, by means of which the legislator, while implementing its discretion, established that a concrete dispute is under cognisance of the administrative court, is in conflict with the Constitution. Thus, the petition of the petitioner virtually raises not the issue of constitutionality of the disputed provision, but rather its compatibility with Paragraph 1 of Article 3 of the LPAC, in other words, it raises the issue of collision of laws.

5. It has been mentioned that under the Constitution, the Constitutional Court does not consider whether a law is in compliance with another law (Constitutional Court rulings of 2 April 2001 and 4 March 2003), it does not decide the issues of compatibility of legal acts of the same power (Constitutional Court decision of 29 September 1999); removal of collisions is a prerogative of the legislator (Constitutional Court ruling of 18 November 1994). If the Constitutional Court is requested to decide the issue of compatibility and rivalry of legal acts of the same legal power, such petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decision of 7 September 2007).

It needs to be held that the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate the constitutionality of Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public is not within the jurisdiction of the Constitutional Court.

6. Under Paragraph 1 of Article 69 of the Law on the Constitutional Court, by means of its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

7. Taking account of the arguments set forth, one is to refuse to accept for consideration the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 8 (wording of 14 July 2008) of Article 46 of the Law on Provision of Information to the Public to the extent that it is established that the producers or disseminators of public information who disagree with the decisions of the Ethics Commission of Lithuanian Journalists and Publishers, i.e. an organisation which is not a legal person, which is not administratively suable and does not have administrative capacity, may apply to the Vilnius Regional Administrative Court regarding such decisions, is not in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

8. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, inter alia requests to investigate the compliance of Paragraph 4 (wording of 11 June 2009) of Article 2 of the LPAC to the extent that it does not establish any legal regulation whereby it would be possible to decide on administrative suability and administrative capacity of a subject of public administration, which is a party in administrative proceedings with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

9. Paragraph 4 (wording of 11 June 2009) of Article 2 “The Main Definitions as Used in this Law” of the LPAC prescribes: “‘Subject of public administration’ means an institution, establishment, officials, state servant, other legal or natural person empowered, under procedure of the Law on the Proceedings of Administrative Cases, to exercise public administration.”

Thus, Paragraph 4 (wording of 11 June 2009) of Article 2 of the LPAC has entrenched the notion of a subject of public administration and enumerated as to who can be a subject of public administration: an institution, establishment, other legal person that has been granted powers of public administration, as well as an official, state servant, other natural person that has been granted powers of public administration, may be a subject of public administration.

10. The petitioner doubts the compliance of the disputed provision with the Constitution due to the fact that it does not contain certain legal regulation which would define suability and capacity of parties to administrative proceedings. According to the petitioner, Paragraph 4 of Article 2 of the LPAC does not contain any “clear provisions regulating administrative suability and capacity of parties to administrative proceedings—both subjects of public administration, and also another side of the administrative legal relation—natural and legal persons”. The petitioner notes that the LPAC and the Law on Public Administration (whose compliance with the Constitution is not disputed by the petitioner) also do not contain any provisions which would confirm that it must be understood that an institution of public administration as a party to the proceedings should be only a legal person.

However, as mentioned, Paragraph 4 (wording of 11 June 2009) of Article 2 of the LPAC has clearly enumerated as to who is allowed to be a subject of public administration.

11. The petition of the petitioner has not clearly formulated the legal arguments how the disputed legal regulation (the legal gap contained therein as presumed by the petitioner) defining the notion of the subject of public administration can violate the principle that justice is administered only by courts (Paragraph 1 of Article 109 of the Constitution), or how it can violate the right of the person to apply to court (Paragraph 1 of Article 30 of the Constitution) or the constitutional principle of a state under the rule of law. In addition, no arguments have been presented why the legal regulation mentioned by the petitioner should be established namely in the provision disputed by the petitioner.

From the entirety of the arguments presented by the petitioner it is clear that its doubts are grounded only upon uncertainties occurring in the practice of construction and application of law.

12. It has been mentioned that, under the Constitution, the Constitutional Court does not decide issues of application of law; such issues are decided by the institution that enjoys powers to apply legal acts; if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002, 13 November 2006, 20 November 2006, and 27 June 2007). The petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 23 September 2002, 20 November 2006).

It needs to be held that the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate the compliance of Paragraph 4 (wording of 11 June 2009) of Article 2 of the LPAC with the Constitution is not within the jurisdiction of the Constitutional Court.

13. Under Paragraph 1 of Article 69 of the Law on the Constitutional Court, by means of its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

14. Taking account of the arguments set forth, one is to refuse to accept for consideration the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Paragraph 4 (wording of 11 June 2009) of Article 2 of the LPAC to the extent that it does not establish any legal regulation whereby it would be possible to decide on administrative suability and administrative capacity of a subject of public administration, which is a party in administrative proceedings, is not in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To refuse to accept for consideration the petition (No. 1B-125/2010) of the Vilnius Regional Administrative Court, the petitioner, whether Paragraph 8 (wording of 14 July 2008) of Article 46 of the Republic of Lithuania Law on Provision of Information to the Public to the extent that it is established that the producers or disseminators of public information who disagree with the decisions of the Ethics Commission of Lithuanian Journalists and Publishers, i.e. an organisation which is not a legal person, which is not administratively suable and does not have administrative capacity, may apply to the Vilnius Regional Administrative Court regarding such decisions, as well as whether Paragraph 4 (wording of 11 June 2009) of Article 2 of the Republic of Lithuania Law on the Proceedings of Administrative Cases to the extent that it does not establish any legal regulation whereby it would be possible to decide on administrative suability and administrative capacity of a subject of public administration, which is a party in administrative proceedings, are not in conflict 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 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