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On returning a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 222) “ON THE CANDIDATE TO THE REPRESENTATIVE OF THE GOVERNMENT” OF 27 FEBRUARY 2004 IS NOT IN CONFLICT WITH THE CONSTITUTIONAL PRINCIPLE OF A STATE UNDER THE RULE OF LAW, ITEM 2 OF ARTICLE 94 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, PARAGRAPH 3 OF ARTICLE 9, ITEM 3 OF PARAGRAPH 2 OF ARTICLE 10 AND ARTICLE 13 OF THE REPUBLIC OF LITHUANIA’S LAW ON PUBLIC SERVICE, AS WELL AS ARTICLE 3 OF THE REPUBLIC OF LITHUANIA’S LAW ON ADMINISTRATIVE SUPERVISION OF MUNICIPALITIES

 

2 July 2004

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, and Vytautas Sinkevičius

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, has considered the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 222) “On the Candidate to the Representative of the Government” of 27 February 2004 is not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania, Item 2 of Article 94 of the Constitution of the Republic of Lithuania, Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Republic of Lithuania’s Law on Public Service, as well as Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities.

The Constitutional Court

has established:

1. On 27 February 2004, the Government of the Republic of Lithuania adopted the Resolution (No. 222) “On the Candidate to the Representative of the Government”, which was set forth as follows:

Pursuant to Item 14 of Article 22 of the Law on the Government of the Republic of Lithuania (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities (Official Gazette Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6 of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on Public Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297), the Government of the Republic of Lithuania resolves:

1. Not to appoint Paulius Uleckas to the office of the Representative of the Government for the Marijampolė County.

2. To empower the Minister of the Interior Virgilijus Bulovas to select, under procedure established in legal acts, a candidate to the office of the Representative of the Government for the Marijampolė County, and to submit a draft resolution to the Government of the Republic of Lithuania concerning his appointment.”

2. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case, suspended its consideration and applied to the Constitutional Court with the petition requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 222) “On the Candidate to the Representative of the Government” of 27 February 2004 is not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution, Item 2 of Article 94 of the Constitution, Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Law on Public Service, as well as Article 3 of the Law on Administrative Supervision of Municipalities.

The Constitutional Court

holds that:

I

1. The petition of the petitioner maintains the following:

1.1. Article 3 of the Law on Administrative Supervision of Municipalities provides that a Representative of the Government is appointed and released under procedure established by the Law on Public Service. Under Item 3 of Paragraph 2 of Article 10 of the Law on Public Service and Article 22 of the Law on the Government, the Government appoints a Representative of the Government to office. Paragraph 1 of Article 9 of the Law on Public Service has established general requirements for persons who are admitted to public service. The procedure of admission of persons to public service is regulated by the Procedure for Admission into the Office of a Public Servant confirmed by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Confirmation of the Procedure for Admission into the Office of a Public Servant” of 24 June 2002. Under Item 14 of the said procedure, when applications of candidates are accepted, one must verify their conformity with the requirements established in Paragraph 1 of Article 9 of the Law on Public Service. Paragraph 3 of Article 9 of the Law on Public Service does not contain any directly established prohibition to admit the persons to public service, whose credibility is doubtful, while under Item 6 of Paragraph 3 of the same article, persons are not admitted to public service in cases provided for in other laws.

1.2. The duty to verify the credibility of a person who seeks to be admitted to an office in public service arises from Paragraph 2 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption, under which the person who lost his credibility may be not admitted to public service. A systemic analysis of this norm means that this requirement is applied to career civil servants as well as to civil servants of political (personal) confidence. According to Paragraphs 6 and 8 of Article 9 of the Law on Prevention of Corruption, one must inform the person about the decision to request for information, while the latter may contest in court the decision to request for information as well as the content of this decision.

1.3. Articles 11 and 13 of the Law on Public Service do not provide for any reasons due to which the person who won the competition may be not admitted to public service.

2. The petition of the petitioner does not contain any legal arguments and reasoning due to which, in the opinion of the petitioner, the impugned government resolution is in conflict with the Constitution and the articles indicated by the petitioner.

3. Paragraph 1 of Article 64 of the Law on the Constitutional Court provides that the grounds for the consideration of a case concerning the compliance of a legal act with the Constitution in the Constitutional Court shall be a legally justified doubt that the entire legal act or part thereof is in conflict with the Constitution according to: (1) the content of norms; (2) the extent of regulation; (3) form; (4) the procedure of adoption, signing, publication, and entry into effect, which is established in the Constitution.

According to Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for an investigation into the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing references to laws.

4. Under Article 70 of the Law on the Constitutional Court, in the case that a petition or attachments thereto fail to comply with the requirements set forth in Articles 66 and 67 of this law, the petition is returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

Conforming to Paragraph 2 of Article 102 of the Constitution of the Republic of Lithuania, Articles 1, 28 and 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has adopted the following

decision:

To return the petition to the petitioner, the Vilnius Regional Administrative Court, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 222) “On the Candidate to the Representative of the Government” of 27 February 2004 is not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania, Item 2 of Article 94 of the Constitution of the Republic of Lithuania, Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Republic of Lithuania’s Law on Public Service, as well as Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities.

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius