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On the procedure for dismissing the Prosecutor General of the Republic of Lithuania

Case No. 20/01

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 9 (WORDING OF 28 NOVEMBER 2000) OF PARAGRAPH 4 OF ARTICLE 11 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE PROSECUTOR’S OFFICE AND ARTICLE 2 OF THE 28 NOVEMBER 2000 REPUBLIC OF LITHUANIA’S LAW ON THE AMENDMENT OF ARTICLE 11 OF THE LAW ON THE PROSECUTOR’S OFFICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

24 January 2003

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

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

The Constitutional Court of the Republic of Lithuania, pursuant to 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 3 January 2003, in its public hearing, considered case No. 20/01 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Articles 1 and 2 of the 28 November 2000 Republic of Lithuania’s Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office were not in conflict with the constitutional principle of a state under the rule of law and the provisions of Articles 5, 67 and 75 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petitioner, the Vilnius Regional Administrative Court, was considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 1 and 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office (Official Gazette Valstybės žinios, 2000, No. 103-3259) were not in conflict with the constitutional principle of a state under the rule of law and the provisions of Articles 5, 67 and 75 of the Constitution.

II

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

1. Paragraph 3 of Article 11 of the Law on the Prosecutor’s Office (wording of 13 March 1997) provided that the Prosecutor General shall be appointed for a seven-year term and dismissed by the Seimas upon the presentation by the Seimas Committee on Legal Affairs. The candidatures of the Prosecutor General used to be proposed to the Seimas Committee on Legal Affairs by the President of the Supreme Court of Lithuania and the Minister of Justice. This procedure of the appointment and dismissal of the Prosecutor General was changed by Article 1 of the Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office: it was established that the Prosecutor General shall be appointed for a seven-year term and dismissed by the President of the Republic upon the approval of the Seimas. Article 2 titled “The Procedure of the Implementation of This Law” of the said law provides that from the day of entry into effect of this law, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by law.

The petitioner points out that by the 3 April 1997 Seimas Resolution “On the appointment of K. Pėdnyčia as the Prosecutor General of the Republic of Lithuania”, the Prosecutor General was appointed for a seven-year term. Subsequent to Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office, the powers of the Prosecutor General were terminated, even though his term of powers had not expired, nor were there any other grounds for the dismissal of the Prosecutor General, which had been provided for in the Law on the Prosecutor’s Office. The former Prosecutor General was charged to temporarily hold the office of the Prosecutor General, however, the established term was clearly shorter than the remaining term of powers of the Prosecutor General. The petitioner also notes that the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office established a compulsory dismissal of the Prosecutor General upon the amendment of the procedure of his appointment, while the powers of the former Prosecutor General were ultimately terminated upon the appointment of a new Prosecutor General.

2. Article 75 of the Constitution provides that officials appointed or elected by the Seimas (with the exception of persons specified in Article 74 of the Constitution) shall be dismissed from office when the Seimas, by majority vote of all the members of the Seimas, expresses no-confidence in them. The petitioner maintains that the Prosecutor General is not pointed out in Article 74 of the Constitution. Under Paragraph 3 of Article 118 of the Constitution, the procedure for the appointment of prosecutors (thus, including the Prosecutor General) and their status shall be established by law.

3. In the opinion of the petitioner, the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office is in conflict with the constitutional principle of a state under the rule of law and the provisions of Articles 5, 67 and 75 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from D. Petrylaitė, the representative of the party concerned.

1. The representative of the party concerned points out that, upon the amendment of the procedure of the appointment of the Prosecutor General by the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office, i.e. upon the establishment that the Prosecutor General shall be appointed for a seven-year term and dismissed by the President of the Republic upon the approval of the Seimas, and upon the consolidation of new grounds for dismissal of the Prosecutor General from office, i.e. upon the establishment that the Prosecutor General is dismissed after the procedure for the appointment of the Prosecutor General is changed when the law provides for different entities who appoint the Prosecutor General, one necessarily had to decide the issue of the powers of the Prosecutor General who was holding the office at that time, and who had been appointed not by the President of the Republic but by the Seimas which, under the said provisions, loses the right to appoint the Prosecutor General to office. Therefore, in Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office it was established that after this law goes into effect, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed by the President of the Republic.

2. D. Petrylaitė maintains that the regulation of the appointment to and dismissal of the Prosecutor General from office by law is linked with respective constitutional provisions: the office of the Prosecutor General is not provided for in the Constitution, it does not establish any procedure for the appointment of the said official, however, it is established in Paragraph 3 of Article 118 of the Constitution that the procedure for the appointment of prosecutors and their status shall be established by law. Thus, under the Constitution, the procedure for the appointment and dismissal of the Prosecutor General is also established by law. In the opinion of the representative of the party concerned, in this case the legislature, while adopting 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office, was permitted and had to decide the issues connected with the procedure for the dismissal of the Prosecutor General.

3. In the opinion of the representative of the party concerned, when changing the procedure for the appointment of the Prosecutor General by the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office, one attempted to establish the procedure for the appointment of the Prosecutor General permitting guaranteeing the independence of the said official from the legislature and the executive. This is in line with the principle of the separation of powers entrenched in Article 5 of the Constitution.

D. Petrylaitė also points out that upon the establishment of the aforesaid new ground for dismissal of the Prosecutor General from office by the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office and, provided the Seimas had not dismissed the Prosecutor General who had been appointed by it, there would have occurred a situation when this official could have been dismissed by neither the Seimas (as it would not have enjoyed this right any longer), nor the President of the Republic (since it would not have been he who had appointed the Prosecutor General to office). Therefore, the provision of Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office that upon the changing of the entity appointing the Prosecutor General the powers of the Prosecutor General holding the office shall be terminated, was necessary. In the opinion of the representative of the party concerned, the provision of Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office does not prohibit the President of the Republic from appointing the Prosecutor General who was holding the office as a new Prosecutor General.

D. Petrylaitė maintains that Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office is a special norm in regard of the provisions of Article 1 of the said law (they establish the procedure of their implementation). Thus, the Seimas, while adopting the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office and, alongside, establishing the procedure of its implementation, made use of the legislative right provided for in Item 2 of Article 67 of the Constitution.

4. The representative of the party concerned maintains that the Seimas, pursuant to Item 5 of Article 67 of the Constitution, shall establish state institutions provided for by law, and shall appoint and dismiss their heads. The Seimas may also dismiss officials appointed by it by majority vote of all members of the Seimas after it expresses no-confidence in them, i.e. pursuant to Article 75 of the Constitution. The provisions of this article of the Constitution must be applied while taking into consideration the provisions of Item 5 of Article 67 and Paragraph 3 of Article 118 of the Constitution.

5. In the opinion of D. Petrylaitė, the impugned provisions of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with the provisions Articles 5, 67 and 75 of the Constitution and the constitutional principle of a state under the rule of law.

IV

In the course of the preparation of the case for the Constitutional Court hearing, explanations were received from A. Sakalas, Chairperson of the Seimas Committee on Legal Affairs, Č. Jokūbauskas, Chairperson of the Division of Civil Cases of the Supreme Court of Lithuania, A. Perkauskas, a reviewer to the President of the Republic of Lithuania, J. Dubinienė, Director of the Department of Law and Law Enforcement of the Office of the Government of the Republic of Lithuania, P. Koverovas, State Secretary of the Ministry of Justice of the Republic of Lithuania, V. Urmonaitė, Deputy Prosecutor General of the Republic of Lithuania, K. Betingis, Chief Prosecutor of the Kaunas Region, I. Laucius, Chief Prosecutor of the Klaipėda Region, A. Mirnyj, Chief Prosecutor of the Šiauliai Region, J. Pupka, Chief Prosecutor of the Panevėžys Region, Prof. Dr. T. Birmontienė, Head of the Department of Constitutional Law of the Faculty of Law, the Law University of Lithuania.

V

At the Constitutional Court hearing, the representative of the party concerned D. Petrylaitė virtually reiterated the arguments set forth in her written explanations to the Constitutional Court.

The Constitutional Court

holds that:

I

1. On 28 November 2000, the Seimas adopted the Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office which provides:

Article 1. Amendment of Paragraphs 3, 4, and 5 of Article 11

1. Instead of the words “by the Seimas upon the presentation by the Seimas Committee on Legal Affairs” in Paragraph 3 of Article 11, to enter the words “by the President of the Republic upon the approval of the Seimas”, to delete the second sentence and set forth this paragraph as follows:

3. The Prosecutor General shall be appointed for a seven-year term and dismissed by the President of the Republic upon the approval of the Seimas.”

2. Instead of the words “may be dismissed” in Paragraph 4 of Article 11, to enter the words “shall be dismissed”, to supplement it with Item 9 and set forth this paragraph as follows:

4. The Prosecutor General shall be dismissed from office in accordance with the procedure established by law in the following cases:

1) of his own will;

2) upon the expiry of the term of his powers;

3) for reasons of health;

4) upon reaching 65 years of age or by reason of retirement;

5) upon being elected to another office or upon voluntary transference to another work;

6) if by his action he discredits the prosecutor's name;

7) if a judgment of conviction passed on him by court comes into force;

8) if he loses citizenship of the Republic of Lithuania;

9) upon changing the procedure for the appointment of the Prosecutor General when the law provides for different entities who appoint the Prosecutor General.”

3. Instead of the words “the Seimas of the Republic of Lithuania” in Paragraph 5 of Article 11, to enter the words “the President of the Republic” and set forth this paragraph as follows:

5. Deputies of the Prosecutor General shall be appointed and dismissed by the President of the Republic upon the presentation by the Prosecutor General.”

Article 2. The Procedure of the Implementation of This Law

From the day of entry into effect of this law, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by law.”

2. The petitioner requests an investigation into whether Articles 1 and 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with the constitutional principle of a state under the rule of law and the provisions of Articles 5, 67 and 75 of the Constitution.

2.1. The petitioner requests an investigation into the compliance of the entire Article 1 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with the Constitution, however, it is clear from the reasoning of the petition that he does not doubt as to the compliance of all provisions of Article 1 with the Constitution but as to the compliance of the provision of Paragraph 2 of the said article that the Prosecutor General is dismissed after the procedure for the appointment of the Prosecutor General is changed when the law provides for different entities who appoint the Prosecutor General with the Constitution.

It needs to be noted that by Paragraph 2 of Article 1 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office Paragraph 4 of Article 11 (wording of 13 March 1997) of the Law on the Prosecutor’s Office was supplemented with Item 9 which established that the Prosecutor General shall be dismissed from office upon changing the procedure for the appointment of the Prosecutor General when the law provides for different entities who appoint the Prosecutor General. Thus, the petitioner doubts as to the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office with the Constitution.

2.2. The petitioner requests an investigation into whether the impugned provisions of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Articles 5 and 67 of the Constitution, however, it is clear from the reasoning of the petition that the petitioner doubts as to the compliance of the impugned provisions of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with not the entire Articles 5 and 67 of the Constitution but with Paragraph 2 of Article 5 and Items 2 and 5 of Article 67 of the Constitution.

3. On 2 May 2002, the Seimas adopted the Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office by Article 1 whereof Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office was recognised as no longer valid.

4. Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with the constitutional principle of a state under the rule of law, Paragraph 2 of Article 5, Items 2 and 5 of Article 67 and Article 75 of the Constitution.

II

On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with the constitutional principle of a state under the rule of law.

1. The petitioner doubts as to whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in compliance with the constitutional principle of a state under the rule of law.

2. The constitutional principle of a state under the rule of law is a universal one upon which the whole Lithuanian legal system as well as the Constitution of the Republic of Lithuania itself are based. The content of the principle of the state under the rule of law may be detected in various provisions of the Constitution (the Constitutional Court’s ruling of 23 February 2000).

Along with the other requirements, the principle of a state under the rule of law, which is entrenched in the Constitution, implies a duty of the state to guarantee certainty and stability of legal regulation as well as protection of legitimate expectations.

3. In its ruling of 11 May 1999, the Constitutional Court held that in a democratic state under the rule of law the officials and institutions must follow law. Carrying out the functions which are important to society and the state, the officials must not face any threat if they fulfil their duties without violations of laws. The constitutional principle of a state under the rule of law requires that the jurisdictional and other institutions which apply law be impartial, independent, that they seek to establish the objective truth and that they adopt their decisions only on the grounds of law.

4. The functions of prosecutors are established in Paragraph 1 of Article 118 of the Constitution: “In criminal cases prosecutors shall pursue charges on behalf of the State, shall carry out criminal prosecution, and shall supervise the activities of the interrogative bodies.”

To discharge their functions properly, the prosecutors must have sufficient independence guarantees, which must be provided for in the law. The legislative or executive powers as well as their officials have no right to interfere with the activities of prosecutors when they discharge their functions established in the Constitution.

An important guarantee of the independence of prosecutors is the provision established in Paragraph 3 of Article 118 of the Constitution that the procedure for the appointment of prosecutors and their status shall be established by law. The legislature, while implementing his constitutional powers to establish the entities who appoint and dismiss prosecutors, also to establish the length of the term of powers of prosecutors, as well as the procedure for their appointment, dismissal, the grounds for the dismissal, is bound by the Constitution, thus, also by the principle of a state under the rule of law entrenched therein, which implies legal certainty, stability and protection of legitimate expectations.

5. In the context of the case at issue, it needs to be noted that the procedure for the appointment and dismissal of the Prosecutor General as well as the grounds for his dismissal have been changed by law more than once.

5.1. On 22 March 1990, by the Resolution “On the Appointment of the Prosecutor of the Republic of Lithuania” the Supreme Council of the Republic of Lithuania appointed the Prosecutor the Republic of Lithuania.

On 27 July 1990, the Republic of Lithuania’s Law on the Prosecutor’s Office was adopted, which provided for the office of the Prosecutor General of the Republic of Lithuania but not that of the Prosecutor the Republic of Lithuania. Under the said law, the term of powers of the Prosecutor General was five years. The Supreme Council enjoyed the right to appoint and dismiss the Prosecutor General, which he was responsible to and accountable for (Articles 8, 12 and 15).

It was established in Item 2 of the 27 July 1990 Supreme Council Resolution “On the Entry into Effect of the Republic of Lithuania’s Law on the Prosecutor’s Office” that as of then the Prosecutor of the Republic of Lithuania shall be referred to as the Prosecutor General of the Republic of Lithuania.

5.2. The Seimas of the 1992–1996 term of office changed the procedure for the appointment and dismissal of the Prosecutor General.

It was provided for in Article 66 of the Republic of Lithuania’s Law on Courts (wording of 31 May 1994) that the Prosecutor General and his deputies shall be appointed and dismissed by the President of the Republic.

On 13 October 1994, the Seimas adopted a new Republic of Lithuania’s Law on the Prosecutor’s Office in Article 11 whereof it was provided that the Prosecutor General shall be appointed for a seven-year term and dismissed by the President of the Republic. The Prosecutor General could be dismissed in the following cases: (1) of his own will; (2) upon the expiry of the term of his powers; (3) for reasons of health; (4) upon reaching 65 years of age or by reason of retirement; (5) upon being elected to another office or upon voluntary transference to another work; (6) if by his action he discredited the prosecutor’s name; (7) if a judgment of conviction passed on him by court came into force.

Article 2 of the 13 October 1994 Republic of Lithuania’s Law “On the Implementation of the Republic of Lithuania’s Law on the Prosecutor’s Office” provided that the Prosecutor General of the Republic of Lithuania under the Supreme Court of Lithuania was to be appointed until 15 November 1994. The powers of the then Prosecutor General were to be terminated after the Prosecutor General of the Republic of Lithuania under the Supreme Court of Lithuania had been appointed.

It was established in the 20 October 1994 Republic of Lithuania’s Law “On the Amendment of the Republic of Lithuania’s Law on Courts” that the Prosecutor General of the Republic of Lithuania shall be appointed and dismissed by the Seimas upon the presentation by the President of the Republic.

It was established in the 3 November 1994 Republic of Lithuania’s Law “On the Amendment of the Republic of Lithuania’s Law on the Prosecutor’s Office and of the Republic of Lithuania’s Law ‘On the Implementation of the Republic of Lithuania’s Law on the Prosecutor’s Office’” that the Prosecutor General of the Republic of Lithuania shall be appointed for a seven-year term and dismissed by the Seimas upon the presentation by the President of the Republic. The Prosecutor General under the Supreme Court of Lithuania was to be appointed until 1 December 1994. The powers of the then Prosecutor General were to be terminated as of 1 January 1995. The said 3 November 1994 law did not change the grounds for the dismissal of the Prosecutor General.

By its 21 December 1994 Resolution “On the Appointment of the Prosecutor General of the Republic of Lithuania”, the Seimas appointed a new Prosecutor General.

5.3. The Seimas of the 1996–2000 term of office also changed the procedure for the appointment and dismissal of the Prosecutor General, as well as the grounds of his dismissal.

By its 25 February 1997 Resolution “On the Dismissal of V. Nikitinas from the Office of the Prosecutor General”, the Seimas dismissed the then Prosecutor General from office.

It was established in the 13 March 1997 Republic of Lithuania’s Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office that the Prosecutor General shall be appointed for a seven-year term by the Seimas upon the presentation by the Seimas Committee on Legal Affairs. The candidatures of the Prosecutor General were to be proposed to the Seimas Committee on Legal Affairs by the President of the Supreme Court of Lithuania and the Minister of Justice (Paragraph 1 of Article 1). Alongside, the list of the grounds for the dismissal of the Prosecutor General was supplemented and it was established that the Prosecutor General may be dismissed if he loses citizenship of the Republic of Lithuania (Paragraph 2 of Article 1).

By its 3 April 1997 Resolution “On the Appointment of K. Pėdnyčia as the Prosecutor General of the Republic of Lithuania”, the Seimas appointed a new Prosecutor General.

5.4. The Seimas elected in 2000 also has changed the procedure for the appointment and dismissal of the Prosecutor General, as well as the grounds of his dismissal.

It was established in Paragraph 1 of Article 1 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office that the Prosecutor General shall be appointed for a seven-year term and dismissed by the President of the Republic upon the approval of the Seimas. By Paragraph 2 of Article 1 of the said law, the list of the grounds for dismissal of the Prosecutor General was supplemented with an additional ground: the Prosecutor General is dismissed after the procedure for the appointment of the Prosecutor General is changed when the law provides for different entities who appoint the Prosecutor General. In Article 2 of the said law it was established that from the day this law goes into effect, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by law.

The President of the Republic, upon the approval of the Seimas, by his 12 December 2000 Decree “On the Appointment of A. Klimavičius as the Prosecutor general of the Republic of Lithuania” appointed a new Prosecutor General.

On 2 May 2002, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office. By the said law, Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office was abolished, which had provided that the Prosecutor General shall be dismissed from office upon changing the procedure for the appointment of the Prosecutor General when the law provides for different entities who appoint the Prosecutor General.

5.5. Thus, each Seimas of a new term of office changed the procedure for the appointment and dismissal of the Prosecutor General, the grounds of dismissal of this official have been changed more than once, while the then Prosecutor General used to be dismissed and a new Prosecutor General used to be appointed. It needs to be noted that not a single one of the Prosecutors General held office for the entire term of powers provided for by law. The legal acts on the grounds of which Prosecutors General used to be dismissed from office did not link their dismissal with the assessment of their work.

6. The provision of Paragraph 3 of Article 118 of the Constitution that the procedure for the appointment of prosecutors and their status shall be established by law means, inter alia, that the legislature has the powers to establish by law the entities who appoint and dismiss prosecutors, also, to establish the term of powers of prosecutors and the grounds and procedure for their dismissal from office. While establishing this, the Seimas is bound by the Constitution, thus, also the principle of a state under the rule of law entrenched therein, which implies legal certainty, stability and protection of legitimate expectations. After he has established the term of powers of the Prosecutor General, the legislature does not have the right to provide for any grounds of dismissal of the Prosecutor General from office before the expiry of the term of his powers. Under the Constitution, the legislature may establish only such grounds for dismissal of the Prosecutor General from office before the expiry of his powers, due to which the Prosecutor General may not hold his office on the whole (e.g. due to such legal facts as the age provided for in the law, transference to another place of work, loss of the citizenship of the Republic of Lithuania). Upon such grounds, following Item 5 of Article 67 of the Constitution, the Seimas dismisses the Prosecutor General which was appointed by the Seimas according to the law.

In the context of the case at issue, it should be noted that, under Article 75 of the Constitution, officials appointed or elected by the Seimas (with the exception of persons specified in Article 74 of the Constitution) shall be dismissed from office when the Seimas, by majority vote of all the members of the Seimas, expresses no-confidence in them. Thus, under the Constitution, the Prosecutor General, if he is appointed by the Seimas in accordance with the law, is also dismissed from office before the expiry of his powers in the case that the Seimas, by majority vote of all the members of the Seimas, expresses no-confidence in him.

7. The changing of the procedure of the appointment of the Prosecutor General when the law provides for other entities appointing the Prosecutor General, under the Constitution, may not serve a ground for dismissal of the Prosecutor General who was appointed for the term provided for by law prior to the expiry of the term of his powers, as this ground is not related with the circumstances due to which the Prosecutor General may not hold his office on the whole.

Thus, under the Constitution, the powers of the Prosecutor General appointed by the Seimas according to the law continue until there appear the grounds established in the law for which the Prosecutor General may not hold his office on the whole, and the Seimas dismisses the Prosecutor General from office (Item 5 of Article 67 of the Constitution) or until the Seimas expresses no-confidence in the Prosecutor General (Article 75 of the Constitution).

8. The provision of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office that the Prosecutor General shall be dismissed from office upon changing the procedure for the appointment of the Prosecutor General when the law provides for different entities who appoint the Prosecutor General, and the provision of Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office that from the day of entry into effect of this law, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by law, the legal regulation was established when the dismissal of the Prosecutor General was determined not by the circumstances due to which the Prosecutor General may not hold his office on the whole but by a mere fact that a law changed the procedure of the appointment of the Prosecutor General and the entity that appoints him. It also needs to be noted that such legal regulation creates preconditions for the emergence of legal uncertainty in the system of the prosecutor’s office and for violation of the independence of prosecutors when they discharge the functions established for them in the Constitution.

Thus, the impugned provisions disregard the constitutional principle of a state under the rule of law which implies legal certainty, stability and protection of legitimate expectations.

9. Taking account of the arguments set forth, it should be concluded that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with the constitutional principle of a state under the rule of law.

III

On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with Item 2 of Article 67 of the Constitution.

1. The petitioner doubts as to whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Item 2 of Article 67 of the Constitution.

2. Under Item 2 of Article 67 of the Constitution, the Seimas shall pass laws.

The Seimas implements the constitutional powers to pass laws by adopting new laws, by changing or supplementing, by law, the valid laws, and by recognising laws as no longer valid.

It needs to be emphasised that the Seimas, while passing laws, is bound by the Constitution and its previously adopted laws. This is an essential element of the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 6 December 2000 and 14 January 2002).

3. It has been mentioned that, under Paragraph 3 of Article 118 of the Constitution, the procedure for the appointment of prosecutors and their status shall be established by law. This provision of the Constitution means, inter alia, that the legislature has the powers to establish by law the entities who appoint and dismiss prosecutors, also, to establish the term of powers of prosecutors and the grounds and procedure for their dismissal from office.

4. The Seimas, while passing the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office, implemented its powers to pass laws, which are established in Item 2 of Article 67 of the Constitution.

5. It has been held in this ruling of the Constitutional Court that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with the constitutional principle of a state under the rule of law.

The fact that the law adopted by the Seimas might be inconsistent with the Constitution in itself does not mean that the Seimas, while passing such a law, violates Item 2 of Article 67 of the Constitution wherein the competence of the Seimas to pass laws is established (the Constitutional Court’s ruling of 6 December 2000).

6. Taking account of the arguments set forth, the conclusion should be drawn that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Item 2 of Article 67 of the Constitution.

IV

On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with Item 5 of Article 67 of the Constitution.

1. The petitioner doubts as to whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Item 5 of Article 67 of the Constitution.

2. Under Item 5 of Article 67 of the Constitution, the Seimas shall establish state institutions provided for by law, and shall appoint and dismiss their heads.

While interpreting Item 5 of Article 67 of the Constitution in the case at issue, it needs to be noted that this item means, inter alia, that the Seimas has the powers to provide for the state institutions in the law, the heads of which are appointed and dismissed by the Seimas itself, also, that the Seimas enjoys the powers to appoint and dismiss the heads of such institutions. Under Item 5 of Article 67 of the Constitution, the Seimas may dismiss the heads of the state institutions which are provided for in laws only upon the grounds of dismissal established in the Constitution and/or laws and following the dismissal procedure established in the Constitution and/or laws. While dismissing the heads of the state institutions provided for in the laws, whom it appointed itself, the Seimas must base itself on the grounds established in laws and follow the procedure established in laws, which are not in conflict with the Constitution. Otherwise, Item 5 of Article 67 of the Constitution would be violated.

3. Under the Constitution, a legal act whereby the head of a state institution provided for by law, who has been appointed by the Seimas, is dismissed, is always an individual legal act, therefore, the form of such a legal act is not that of a law but it is a different, i.e. substatutory, act of the Seimas. Under Paragraph 2 of Article 70 of the Constitution, such legal acts of the Seimas are signed by the Speaker of the Seimas. The said legal acts come into effect the day following the publication thereof, unless they themselves establish another procedure of entry into effect. Under the Constitution, it is not permitted to dismiss, by law, the head of a state institution provided for by law, who was appointed by the Seimas, as there would occur a legal situation when the Seimas, which enjoys the constitutional powers to dismiss the head of a state institution provided for by law, who was appointed by the Seimas, would not be able to implement such powers alone: as any law, then a law whereby the head of a state institution provided for by law, who was appointed by the Seimas, is dismissed, ought to be submitted to the President of the Republic for signing and promulgation; the President of the Republic would be able not to sign such a law and could refer it back to the Seimas together with relevant reasons for reconsideration; a law reconsidered by the Seimas would be deemed adopted only if the amendments and supplements presented by the President of the Republic were adopted, or if more than half of all the members of the Seimas voted in favour of the law.

If the head of a state institution provided for by law, who was appointed by the Seimas, is dismissed by law, the powers of the Seimas which are established in Item 5 of Article 67 of the Constitution to dismiss the heads of state institutions provided for by law who have been appointed by the Seimas would be limited, alongside, the constitutional principle of the separation of powers would be violated.

4. It has been mentioned that in Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office one established the ground for dismissal of the Prosecutor General prior to the expiry of the term of his powers, that the dismissal of the Prosecutor General was determined not by the circumstances due to which the Prosecutor General may not hold his office on the whole but by a mere fact that a law changed the procedure of the appointment of the Prosecutor General and the entity that appoints him. After the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office had gone into effect, under Article 2 of the said law the powers of the then Prosecutor General were terminated, i.e. he was dismissed form office. In this Ruling, the Constitutional Court has held that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with the constitutional principle of a state under the rule of law. Thus, by the impugned provisions one established a ground for dismissal of the Prosecutor General prior to the expiry of his powers, which is in conflict with the Constitution, and the powers of the Prosecutor General were terminated; the said powers were terminated by law.

5. Taking account of the arguments set forth, it should be concluded that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with Item 5 of Article 67 of the Constitution.

V

On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with Article 75 of the Constitution.

1. The petitioner doubts as to whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Article 75 of the Constitution.

2. Article 75 of the Constitution provides: “Officials appointed or elected by the Seimas (with the exception of persons specified in Article 74 of the Constitution) shall be dismissed from office when the Seimas, by majority vote of all the members of the Seimas, expresses no-confidence in them.”

This article of the Constitution establishes the right of the Seimas to dismiss those officials from office, who were appointed or elected by the Seimas, with the exception of persons specified in Article 74 of the Constitution. This is done by following a special parliamentary procedure, which is expression of no-confidence. The no-confidence is expressed by majority vote of all the members of the Seimas.

The institute of expression of no-confidence is not only one of the ways of the parliamentary control carried out by the Seimas, but also an important guarantee of the activity of the official appointed or elected by the Seimas, since such an official, if there are no grounds due to which he may not hold his office on the whole, may be dismissed from office prior to the expiry of the term of his powers when more than half of all members of the Seimas vote in favour of no-confidence. The expression of no-confidence is the ground for dismissal of an official appointed or elected by the Seimas from office, which must be linked with the assessment of the activity of the official, therefore, the regulation of the procedure of the parliamentary expression of no-confidence must be such so as to ensure the due process of law, which means, inter alia, that an official against whom no-confidence is expressed should have a real opportunity to present to the Seimas his explanations and to answer, at the Seimas sitting, all the arguments upon which the no-confidence is grounded.

3. It has been mentioned that by Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office one established an additional ground for dismissal of the Prosecutor General from office, while by Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office the powers of the Prosecutor General appointed by the Seimas were terminated. By the impugned provisions one did not decide the issue of expression of no-confidence in the Prosecutor General; by the said provisions one did not deny or limit the right of the Seimas entrenched in Article 75 of the Constitution to express no-confidence, by majority vote of all members of the Seimas, in an official appointed or elected by the Seimas.

4. Taking account of the arguments set forth, it should be concluded that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Article 75 of the Constitution.

VI

On the compliance of Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office with Paragraph 2 of Article 5 of the Constitution.

1. The petitioner doubts as to whether Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are not in conflict with Paragraph 2 of Article 5 of the Constitution.

2. Paragraph 2 of Article 5 of the Constitution provides that the scope of power shall be limited by the Constitution.

While construing this provision of Paragraph 2 of Article 5 of the Constitution, the Constitutional Court noted: “While preparing and adopting legal acts, institutions of state authority must follow the principle of a state under the rule of law entrenched in the Constitution. Paragraph 2 of Article 5 of the Constitution provides that the scope of power shall be limited by the Constitution. This means that the Seimas, as the legislature of laws and other legal acts, is independent as much as its powers are not limited by the Constitution” (the Constitutional Court’s ruling of 12 July 2001).

3. It has been held in this ruling of the Constitutional Court that by the impugned provisions one established a ground for dismissal of the Prosecutor General prior to the expiry of the term of his powers, which was in conflict with the Constitution, and the powers of the Prosecutor General were terminated. After it had been established in Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office that the Prosecutor General shall be dismissed upon changing the procedure for the appointment of the Prosecutor General when the law provides for different entities who appoint the Prosecutor General and in Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office that from the day of entry into effect of this law, the powers of the Prosecutor General appointed by the Seimas shall be terminated and he shall temporarily hold the office of the Prosecutor General until a new Prosecutor General is appointed under the procedure established by law, the constitutional principle of a state under the rule of law and Item 5 of Article 67 were violated.

Thus, the Seimas exceeded the powers established for it in the Constitution.

4. Taking account of the arguments set forth, it should be concluded that Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with Paragraph 2 of Article 5 of the Constitution.

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 Item 9 (wording of 28 November 2000) of Paragraph 4 of Article 11 of the Republic of Lithuania’s Law on the Prosecutor’s Office and Article 2 of the 28 November 2000 Republic of Lithuania’s Law on the Amendment of Article 11 of the Law on the Prosecutor’s Office are in conflict with Item 2 of Article 5 and Item 5 of Article 67 of the Constitution of the Republic of Lithuania, as well as 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

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas