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On the constitutionality of the legal acts related to the reorganisation of the armed forces

Case No. 16/2009

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE FIFTH, SIXTH AND EIGHTH PARAGRAPHS OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA “ON THE PRINCIPLES OF ORGANISATION OF THE LITHUANIAN ARMED FORCES” OF 13 MARCH 2008, THE PROVISIONS OF ITEM 18 OF THE CONCEPTION OF THE REPUBLIC OF LITHUANIA’S LAW ON MILITARY CONSCRIPTION WITH ITS NEW WORDING AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 620) “ON APPROVING THE CONCEPTION OF THE REPUBLIC OF LITHUANIA’S LAW ON MILITARY CONSCRIPTION WITH ITS NEW WORDING” OF 18 JUNE 2008, ITEM 2 OF PARAGRAPH 2 OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA’S LAW ON ESTABLISHING THE PRINCIPAL STRUCTURE OF THE ARMED FORCES IN 2008, ESTABLISHING THE PLANNED PRINCIPAL STRUCTURE OF THE ARMED FORCES IN 2013 AND APPROVING THE MARGIN NUMBER OF STATUTORY SERVANTS IN THE CIVIL NATIONAL DEFENCE SERVICE AND ITEM 2 OF PARAGRAPH 2 OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA’S LAW ON ESTABLISHING THE PRINCIPAL STRUCTURE OF THE ARMED FORCES IN 2009, ESTABLISHING THE PLANNED PRINCIPAL STRUCTURE OF THE ARMED FORCES IN 2014 AND APPROVING THE MARGIN NUMBER OF STATUTORY SERVANTS IN THE CIVIL NATIONAL DEFENCE SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

24 September 2009
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

The court reporter—Daiva Pitrėnaitė

Arvydas Anušauskas, Chairperson of the Seimas Committee on National Security and Defence, and Stasys Šedbaras, Chairperson of the Seimas Committee on Legal Affairs, acting as the representatives of the Seimas of the Republic of Lithuania, the petitioner

Seimas member Juozas Olekas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Veronika Baliūnienė, Head of the Legal Unit of the Office of the Prime Minister of the Republic of Lithuania, Jolita Mikulėnienė, Advisor to the Legal Unit of the Office of the Prime Minister and Jonas Kronkaitis, Advisor to the Minister of National Defence of the Republic of Lithuania, acting as the representatives of the Government of the Republic of Lithuania, a 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, in its public hearing, on 15 September 2009, considered constitutional justice case No. 16/2009 subsequent to the petition of the Seimas of the Republic of Lithuania, the petitioner, set forth in Article 1 of its Resolution (No. XI-209) “On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into Whether the Provisions of the Fifth, Sixth and Eighth Paragraphs of the Resolution of the Seimas of the Republic of Lithuania ‘On the Principles of Organisation of the Lithuanian Armed Forces’ of 13 March 2008, the Provision of the Second Sentence of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as Approved by the Resolution of the Government of the Republic of Lithuania (No. 620) ‘On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording’ of 18 June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service and Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in Conflict with the Second Paragraph of Article 3, the Second Paragraph of Article 5, the First and the Second Paragraphs of Article 139 of the Constitution of the Republic of Lithuania, and with the Constitutional Principle of a State under the Rule of Law” of 26 March 2009 requesting an investigation into whether the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008, the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Resolution of the Government of the Republic of Lithuania (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service, as well as Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

1. On 26 March 2009, the Seimas, the petitioner, adopted the Resolution (No. XI-209) “On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into Whether the Provisions of the Fifth, Sixth and Eighth Paragraphs of the Resolution of the Seimas of the Republic of Lithuania ‘On the Principles of Organisation of the Lithuanian Armed Forces’ of 13 March 2008, the Provision of the Second Sentence of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as Approved by the Resolution of the Government of the Republic of Lithuania (No. 620) ‘On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording’ of 18 June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service and Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in Conflict with the Second Paragraph of Article 3, the Second Paragraph of Article 5, the First and the Second Paragraphs of Article 139 of the Constitution of the Republic of Lithuania, and with the Constitutional Principle of a State under the Rule of Law” in Article 1 of which it set forth the petition for the Constitutional Court requesting an investigation into whether the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008, the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, the provision of the second sentence of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Government Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008 to the extent that it provides for that “one shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0”, Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service and Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

The petition of the Seimas, the petitioner, was received at the Constitutional Court on 1 April 2009.

2. By its Decision “On Accepting the Petition of the Seimas of the Republic of Lithuania, the Petitioner, Set Forth in Its Resolution (No. XI-209) ‘On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into Whether the Provisions of the Fifth, Sixth and Eighth Paragraphs of the Resolution of the Seimas of the Republic of Lithuania ‘On the Principles of Organisation of the Lithuanian Armed Forces’ of 13 March 2008, the Provision of the Second Sentence of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as Approved by the Resolution of the Government of the Republic of Lithuania (No. 620) ‘On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording’ of 18 June 2008, Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service and Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in Conflict with the Second Paragraph of Article 3, the Second Paragraph of Article 5, the First and the Second Paragraphs of Article 139 of the Constitution of the Republic of Lithuania, and with the Constitutional Principle of a State under the Rule of Law’ of 26 March 2009” of 3 April 2009, the Constitutional Court decided to accept the petition set forth in the Resolution of the Seimas of 26 March 2009 requesting an investigation whether the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the fifth paragraph of the Resolution of the Seimas of the Republic of Lithuania “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008, the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Government Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008, Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service, as well as Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

3. The announcement of the President of the Constitutional Court regarding the acceptance of the said petition was officially announced in the official gazette “Valstybės žinios” (Official Gazette Valstybės žinios, 2009, No. 39-1479) on 7 April 2009. Since that day until the publication of a ruling of the Constitutional Court in this constitutional justice case, the validity of the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the fifth paragraph of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 (Official Gazette Valstybės žinios, 2008, No. 47-1753), the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Government Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008 (Official Gazette Valstybės žinios, 2008, No. 75-2942), Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (Official Gazette Valstybės žinios, 2008, No. 87-3460) adopted by the Seimas on 15 July 2008, as well as Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (Official Gazette Valstybės žinios, 2008, No. 87-3461) adopted by the Seimas on 15 July 2008 is suspended.

II

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

1. Paragraph 2 of Article 139 of the Constitution consolidates the institute of military obligation which is not an end in itself. While construing this provision together with the provision “the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force” of Paragraph 2 of Article 3 of the Constitution and with the provision “the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania” of Paragraph 1 of Article 139 of the Constitution, the conclusion should be drawn that the purpose of the military obligation is to prepare citizens of the Republic of Lithuania to implement their constitutional rights and duties to defend their Homeland. Thus, according to Paragraph 2 of Article 139 of the Constitution, the legislature must establish such procedure of performance of the obligatory initial military service that it would effectively ensure the implementation of the right and duty of a citizen of the Republic of Lithuania to defend his Homeland which is consolidated in Paragraph 1 of Article 139 of the Constitution, as well as the implementation of the right of the Nation and each citizen to resist anyone who encroaches to destroy the State of Lithuania by force, which is established in Paragraph 2 of Article 3 of the Constitution. In addition, the legislature has not been granted the right to suspend the obligatory initial military service without providing for the efficient alternatives for it, whereby one would reach the purpose of the military obligation to prepare citizens for the defence of the Homeland.

2. The provisions of the fifth, sixth and eighth paragraph of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 (hereinafter also referred to as the Resolution), the provisions of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording (hereinafter also referred to as the Conception) as approved by the Government Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008, the provisions of Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (hereinafter also referred to as the Law on the Planned Principal Structure of the Armed Forces in 2013) and the provisions of Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (hereinafter also referred to as the Law on the Planned Principal Structure of the Armed Forces in 2014), provide that the obligatory initial military service should be suspended and the performance of this service is actually already being suspended. However, the legislature does not provide for efficient alternatives of the obligatory initial military service which would create preconditions for the Nation and its citizens to implement the rights and duties linked to the defence of the Homeland which are provided for in Paragraph 2 of Article 3 and Paragraph 1 of Article 139 of the Constitution.

3. The provision of the fifth paragraph of the Resolution envisaging organising the Lithuanian armed forces only on voluntary grounds, i.e. on the grounds of professional and volunteer military service, would be insufficient in order to ensure that every citizen of the Republic of Lithuania, when such a need arises, could properly implement his right and duty to defend the Homeland. In addition, it would create favourable preconditions for the citizens who avoid implementing their constitutional duties to escape from the performance of such duty.

4. The sixth paragraph of the Resolution provides to retain the obligatory military service only in case of mobilisation, i.e. essentially only in case of a war or threat. This may mean that in case of war or its threat, citizens of the Republic of Lithuania may be unprepared for the defence of the Homeland.

5. Under Item 20 of the Conception, at the time of peace one provides for the general obligatory education of military draftees on the questions of defence when they participate in one-day national defence events. If the Seimas decides not to call-up to the obligatory initial military service during the time of peace, such measure would be insufficient to prepare the citizens of the Republic of Lithuania so that they could efficiently implement their rights and duties which are consolidated in Paragraph 2 of Article 3 and Paragraph 1 of Article 139 of the Constitution.

6. If the incompliance of the impugned legal acts with the provisions of Articles 3 and 139 of the Constitution were established, one should have to hold that the Seimas and the Government, while adopting the impugned provisions of the legal acts, disregarded the constitutional principles limiting their discretion, thus, also violated the constitutional principle “the scope of power shall be limited by the Constitution” which is consolidated in Paragraph 2 of Article 5 of the Constitution. Should the above be stated, one would also have to hold that the impugned provisions of the legal acts adopted by the Seimas and by the Government are in conflict with the constitutional principle of a state under the rule of law.

III

1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from the representative of the Seimas, a party concerned, who was Seimas member J. Olekas, were received. In the opinion of the representative of the party concerned, the provisions entrenched in the impugned legal acts that the obligatory initial military service, under corresponding conditions, may be postponed for all the citizens of the Republic of Lithuania who are of the conscript age and that in 2013 and 2014 in the Lithuanian Armed Forces there will be no soldiers of the obligatory initial military service are not in conflict with the Constitution. The position of the representative of the party concerned is based on the following arguments.

1.1. The implementation of the provision of Paragraph 1 of Article 139 of the Constitution is ensured through the military preparation for the defence of the state. Before the military obligation is suspended, there are two kinds of military preparation: the voluntary one and the obligatory one. Having suspended the call-up to the obligatory initial military service, only the voluntary military service will remain which must be strengthened while seeking to create preconditions for citizens to prepare for the defence of the country. For this purpose, the volunteer soldiers must be sent to trainings so that they would gain the basic military preparation.

1.2. Following Paragraph 2 of Article 139 of the Constitution, the legislature has the discretion to establish the forms and cases of the performance of military obligation, therefore, the intention to suspend the call-up to the obligatory initial military service is not in conflict with the provisions of Article 139 of the Constitution. The military obligation must be performed when it is necessary to defend the State of Lithuania against a foreign armed attack, i.e. in the event of mobilisation.

1.3. The present system of military service, when one is called up to the obligatory initial military service, does not meet the requirements which are laid down for the modern armed forces. When such service is refused, the number of soldiers of the Lithuanian armed forces will decrease, however, while completing the armed forces on the grounds of professional and volunteer military service, one will gain the qualitative balance against big but weakly prepared forces. The armed forces which are professionally prepared and armed in the modern manner will be more efficient both on the national level and while implementing the international obligations.

1.4. The present call-up system is socially unfair as only about 2 percent of all the young men which are suitable for the performance of the obligatory initial military service perform this service.

1.5. After the Republic of Lithuania has become a member of the North Atlantic Treaty Organisation (hereinafter referred to as NATO), its geopolitical and security situation essentially changed. The country’s membership in NATO and its defence based on the principle of collective defence ensure the protection of the constitutional values best. Due to the changed security situation and the tasks of the armed forces which are qualitatively different, in most NATO states the obligatory initial military service was abandoned or there are plans to abandon it. Out of 28 NATO states, only nine states (Denmark, Norway, Greece, Bulgaria, Poland, Estonia, Croatia, Albania and Lithuania) still have the obligatory military service.

2. By the 23 April 2009 ordinance (No. 154) of the Prime Minister, Dainius Žalimas, an advisor-lawyer to the Minister of National Defence, and Algimantas Gutauskas, Deputy Director of the Legal Department of the Ministry of National Defence, were commissioned to represent the Government, a party concerned.

2.1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from D. Žalimas and A. Gutauskas were received, in which it is stated that the provisions consolidated in the impugned legal acts that, under the corresponding conditions, the obligatory initial military service may be postponed for all the citizens of the Republic of Lithuania who are of conscript age and that in 2013 and 2014 in the Lithuanian Armed Forces there will be no soldiers of the obligatory initial military service are not in conflict with the Constitution. The following is noted in the explanations: the institute of military obligation which is consolidated in Paragraph 2 of Article 139 of the Constitution is linked to the defence of one of the most important constitutional values—defence of the independence of the State of Lithuania, however, this provision of the Constitution must be construed also in the context of other values defended by the Constitution; the welfare of the Nation and its citizens, the economic prosperity of the country and the international obligations aimed to ensure the state’s security are no less important constitutional values than the defence of independence of the State of Lithuania, therefore, the state must, by means of laws, ensure the balance of these values and the corresponding defence thereof; the sovereignty of the State of Lithuania, its territorial integrity, the political independence and constitutional order may not be defended only by means of arms; the guarantee of other constitutional values—the welfare of the Nation and its citizens as well as their rights and freedoms—is no less important for the protection of these values. In addition, in the explanations one emphasises the membership of the Republic of Lithuania in NATO which is the most effective organisation of collective defence and a reliable deterrent of any aggressor. It also needs to be noted that the membership in NATO obliges Lithuania to be able to send to international operations and to maintain a military unit of a battalion size which would be composed of soldiers of professional military service and volunteers; taking account of the present Lithuanian economic situation, to equip and maintain not only a brigade composed of soldiers of professional military service, but also the military units formed on the grounds of obligatory initial military service, would mean either postponement of implementation of Lithuania’s obligations to NATO or imposing an additional burden to the Lithuanian economy so violating other constitutional values and values which ensure the national security—the welfare of the Nation and its citizens and the capability and competitiveness of the economy of this country.

2.2. On 11 September 2009, at the Constitutional Court, the Letter of the Prime Minister (No. 12-5433) “The Opinion of the Legitimate Representative of the Government of the Republic of Lithuania, a Party Concerned, in the Constitutional Court’s Case No. 16/2009 Regarding the Arguments Set Forth in the Petition of the Seimas of the Republic of Lithuania, the Petitioner, Requesting an Investigation into the Compliance of the Legal Acts of the Republic of Lithuania Establishing the Suspension of the Obligatory Initial Military Service with the Constitution” of 11 September 2009 was received, in which it is stated that the opinion of D. Žalimas and A. Gutauskas, the representatives of the Government, a party concerned, who were commissioned by the 23 April 2009 ordinance (No. 154) of the Prime Minister, presented for the Constitutional Court in this constitutional justice case “was not co-ordinated with the Government of the Republic of Lithuania. Even though the fifteenth coalition Government of the Republic of Lithuania does not have the final position regarding the compliance of the legal acts specified in Seimas resolution No. XI-209 of 26 March 2009 with the Constitution, however, contrary to what was specified in the opinion presented to the Constitutional Court by the representatives of the Government of the Republic of Lithuania, a party concerned, the Government has doubts regarding the fact that the specified legal acts may be in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution.”

2.3. Together with the said document, two ordinances of the Prime Minister were submitted to the Constitutional Court: ordinance No. 387 of 11 September 2009 whereby one authorised Veronika Baliūnienė, Head of the Legal Unit of the Office of the Prime Minister, Jolita Mikulėnienė, Advisor to the Legal Unit of the Office of the Prime Minister, and Jonas Kronkaitis, Advisor to the Minister of National Defence, to represent the Government in the constitutional justice case at issue, and ordinance No. 388 of 11 September 2009, whereby the 23 April 2009 ordinance (No. 154) of the Prime Minister (regarding the authorisation for D. Žalimas, an advisor-lawyer to the Minister of National Defence, and A. Gutauskas, Deputy Director of the Legal Department of the Ministry of National Defence, to represent the Government at the Constitutional Court) was declared no longer valid.

IV

At the Constitutional Court’s hearing, A. Anušauskas, Chairperson of the Committee on National Security and Defence of the Seimas, and S. Šedbaras, Chairperson of the Committee on Legal Affairs of the Seimas, the representatives of the Seimas, the petitioner, reiterated the arguments set forth in the petition of the petitioner and answered to the questions.

Seimas member J. Olekas, the representative of the Seimas, a party concerned, reiterated the arguments set forth in the written explanations as well as answered to the questions and presented additional explanations.

V. Baliūnienė, Head of the Legal Unit of the Office of the Prime Minister, the representative of the Government, a party concerned, assented to the petitioner’s doubt regarding the compliance of the impugned legal acts with the Constitution. She explained that, under the Constitution, inter alia, Item 2 of Article 94 thereof, while passing legal acts, the Government must follow the effective laws; the legal acts of the Government may not establish any such legal regulation which would compete with the one established in the laws. According to V. Baliūnienė, the Conception was prepared while implementing the impugned Seimas Resolution. Thus, the Government approved the impugned Conception while implementing its constitutional duty to implement the legal acts adopted by the Seimas. Otherwise, according to the representative of the Government, a party concerned, one would have violated the imperatives of the constitutional principles of a state under the rule of law and the separation of powers which stem from Paragraph 2 of Article 5 of the Constitution, in which it is prescribed that the scope of power shall be limited by the Constitution, and from Item 2 of Article 94 of the Constitution.

J. Kronkaitis, Advisor to the Minister of National Defence, the representative of the Government, a party concerned, noted that the Republic of Lithuania must retain a certain number of soldiers of obligatory military service. He emphasised that the armed forces must be able to accumulate and retain the mobilisation reserve, so it must be well-organised and composed on the ground of regular military units. Therefore, the impugned legal acts, in the opinion of J. Kronkaitis, are in conflict with the Constitution.

The Constitutional Court

holds that:

I

1. As mentioned before, the Seimas, the petitioner, requests an investigation into whether the provisions of the fifth, sixth and eighth paragraphs of the Resolution, the provision of the second sentence of Item 18 of the Conception, Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 and Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014 are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

2. Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 which is impugned in this constitutional justice case establishes the margin number of soldiers of the obligatory initial military service (0) in 2013. Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014 which is impugned in this constitutional justice case also establishes the margin number of soldiers of the obligatory initial military service (0), but not in 2013, but in 2014. Therefore, the provisions of the Law on the Planned Principal Structure of the Armed Forces in 2013 and of the Law on the Planned Principal Structure of the Armed Forces in 2014 which are impugned in the constitutional justice case at issue, according to the content of the legal regulation consolidated therein, are essentially identical, only the periods of time of application of that legal regulation are different. Thus, in this constitutional justice case, the Constitutional Court will investigate the compliance of the impugned provisions of laws with the Constitution in connection with one another.

3. Taking account of the content, extent and arguments of the petition of the petitioner, in this constitutional justice case the Constitutional Court will investigate the following:

the compliance of the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the fifth paragraph of the Resolution, the provision of the sixth paragraph, to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law;

the compliance of the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law;

the compliance of Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 and Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014 with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

II

1. In this constitutional justice case, the petitioner impugns the provisions of the legal acts which provide for tendencies in the policy in organisation of the national defence system, as well as of the legal acts which regulate the relations linked to military service. While construing the impugned legal regulation, it is important to reveal the development of the law-making of the Republic of Lithuania in the sphere of national defence which is linked to that regulation.

2. Upon restoration of the independent State of Lithuania on 11 March 1990, one started to create the legal basis of the system of organisation of the national defence system of the Republic of Lithuania.

2.1. The Supreme Council of the Republic of Lithuania, by 11 March 1990 Law “On the Provisional Basic Law of the Republic of Lithuania” suspended the validity of the 12 May 1938 Constitution of Lithuania and confirmed the Provisional Basic Law of the Republic of Lithuania. Article 39 of the Provisional Basic Law consolidated the duty of the Lithuanian citizens to protect the interests of the State of Lithuania and to defend it. Paragraph 2 of this article prescribed that military service in the armed forces of the Republic of Lithuania shall be an honourable duty of all citizens of Lithuania. Article 8 of the Provisional Basic Law prescribed that the defence of the country shall be regulated by law.

2.2. On 17 July 1990, the Supreme Council adopted the Republic of Lithuania’s Provisional Law on the National Defence Obligation in whose preamble it is noted that citizens of the Republic of Lithuania must protect and defend their state and that Lithuanian national defence is an activity of the state whereby one seeks to defend the independence of the state, its interests, borders and territory. This law established the legal regulation of the organisation of the national defence obligation and service of the State of Lithuania during the time period of restoration of statehood (Item 1 of the law).

2.3. On 16 October 1990, the Supreme Council adopted the Republic of Lithuania’s Law on Compulsory Alternative (Labour) Service in which the grounds and procedure of compulsory alternative (labour) service of citizens of the Republic of Lithuania between the ages of 19 and 27, draftees of the national defence, who are unable, on the basis of their beliefs, to perform the actual national defence service were established.

2.4. On 20 November of the same year, the Seimas adopted the Republic of Lithuania’s Law on National Defence Service. Article 1 of this law prescribed that a soldier is a defender of the State of Lithuania, while Article 2 of this law defined the categories of soldiers and their concepts. In this article, the following was prescribed:

A soldier may be in the actual national defence service, in the reserve or retired.

A soldier of the actual national defence service shall be a soldier who serves in the actual national defence service.

A reserve soldier shall be a soldier who is relieved of the actual national defence service.

A retired soldier shall be a soldier, who, due to age or health reasons, is released from the actual national defence service or reserve and transferred to retirement.”

2.5. Thus, the said laws consolidated the main principles of the national defence system, inter alia, national defence service and organisation principles.

3. The Constitution of the Republic of Lithuania was adopted by referendum which took place on 25 October 1992. It went into effect on 2 November 1992. Under Article 1 of the Law of the Republic of Lithuania “On the Procedure of Entry into Effect of the Constitution of the Republic of Lithuania”, which was adopted by the Nation by the 25 October 1992 referendum together with the Constitution of the Republic of Lithuania and which is a constituent part of the Constitution, upon entry into effect of the Constitution, the Provisional Basic Law became null and void. From then on the Lithuanian national legal system had to be created and developed only on the grounds of the Constitution. Therefore, in the course of the regulation of the relations linked to the national defence, the duty arose to the legislature to heed the requirements which stem from the Constitution, inter alia, Article 139 thereof.

4. On 22 October 1996, the Seimas adopted the Republic of Lithuania’s Law on National Conscription which established the procedure for the fulfilment of military conscription of citizens of the Republic of Lithuania and the ensuring of the said conscription (Paragraph 1 of Article 1). Upon coming into force of this law, the legal acts which had regulated the organisation of the national defence system until then, inter alia, the Provisional Law on the National Defence Obligation, the Law on Compulsory Alternative (Labour) Service and the Law on National Defence Service became no longer valid (Article 42 of the Law on National Conscription (wording of 22 October 1996)).

4.1. Article 2 (wording of 22 October 1996) of the Law on National Conscription prescribed that “military conscription is the right of a citizen of the Republic of Lithuania, provided for in the Constitution, to fulfil actual military service or alternative national defence service, and to prepare oneself to defend the state from aggression.”

4.2. Article 4 (wording of 22 October 1996) of the Law on National Conscription defined the notions used in the law, inter alia, the following:

2. ‘Necessary military service’ means obligatory military service of a citizen of the Republic of Lithuania consisting of initial military service and military service in the active reserve.

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4. ‘Alternative national defence service’ means alternative obligatory national defence supporting service for those who, due to religious or pacifistic beliefs, may not serve under arms.

5. ‘Military draftee’ means a citizen of the Republic of Lithuania over 16 years of age who has the obligation to serve.

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7. ‘Conscript’ means a military draftee from 19 to 27 years of age who has neither completed the necessary military service, nor is exempted from it because of the reasons laid down in this Law.”

4.3. By the Republic of Lithuania’s Law on Amending and Supplementing the Law on National Conscription which was adopted on 22 June 1999, Paragraph 2 of Article 4 of the Law on National Conscription (wording of 22 October 1996) was amended and set forth as follows:

“‘Obligatory military service’ means required military service of a citizen of the Republic of Lithuania, established by the Constitution of the Republic of Lithuania. It shall consist of initial continuous military service of the duration established by this Law and periodic refreshing military service in the active reserve and service in the event of mobilisation.”

Thus, by this amendment of the Law on National Conscription, the name of necessary military service was changed into obligatory military service, and it was supplemented that such service consists not only of the initial military service and periodic service in the active reserve, but also service in the event of mobilisation.

By this amendment, also the notion “necessary military service” of the definition of the alternative national defence service consolidated in Article 4 (wording of 22 October 1996) of the Law on National Conscription was replaced by the notion “obligatory initial military service”, and in the description of the conscript it is specified that it means a military draftee (male) from 19 to 26 years of age who has neither completed “an initial period of obligatory military service, nor alternative national defence service”.

4.4. Article 8 (wording of 22 October 1996) of the Law on National Conscription consolidated the grounds for exemption from the necessary military service. This article established the following:

1. Citizens of the Republic of Lithuania shall be exempted from necessary military service in the following cases:

1) they do not fit for necessary military service because of their health condition in accordance with the list of diseases as approved by the Ministry of Health, upon coordination with the Ministry of National Defence and the Ministry of the Interior;

2) they are sentenced to imprisonment;

3) having declared in writing that due to their religious or pacifistic beliefs they may not serve under arms, and want to fulfil alternative national defence service;

4) those who have completed necessary military trainings under procedure established in Article 19 of this Law;

5) clergymen of religious communities and associations which are traditional in Lithuania and recognised by the State.

2. Citizens, sentenced to imprisonment for the crimes which were committed due to negligence, may apply to the Selective Recruitment Commission regarding the permission to perform the necessary military service.”

This article has been amended more than once. Article 8 (wording of 12 October 2006) of the Law on National Conscription which is effective now provides:

8. Exemption from Obligatory Initial Military Service or Its Replacement

1. Citizens of the Republic of Lithuania shall be exempted from the obligatory initial military service in the following cases:

1) they do not fit for the obligatory initial military service because of their health condition in accordance with the list of diseases established in the Regulations for Military Medical Examination;

2) having declared in writing that due to their religious or pacifistic beliefs they may not serve under arms, and assigned to fulfil alternative national defence service;

3) clergymen of religious communities and associations which are traditional in Lithuania and recognised by the State.

2. Persons who lost both parents or were deprived of parental care if they are not adopted or if they were established guardianship (care) up to their majority, upon submission of a reasoned request, may be exempted from the obligatory initial military service by a decision of the Minister of National Defence.

3. Persons recognised guilty for the commission of intentional crimes and they were imposed an imprisonment punishment, may not be called up to fulfil the obligatory military service.

4. The obligatory initial military service of the duration provided for in Article 17 of this Law may be altered into one of the following types of service:

1) for students of schools of higher education, except students of the Military Academy of Lithuania—training in Leadership Courses of set duration during the studies, the schedule of which is co-ordinated with a schedule of studies at schools of higher education, and performing military training in the armed forces or in the necessary military trainings the duration of which does not exceed 90 days during summer holidays in accordance with the procedure established in Article 19;

2) for cadets of the Military Academy of Lithuania—studies according to a curriculum of the Academy;

3) for persons who graduated from high schools—service the duration of which does not exceed 6 months in separate training military units according to a leadership training programme or service the duration of which does not exceed 3 months according to the basic military training course;

4) in the manner prescribed by Article 19 of this Law, basic military training;

5) for persons who have concluded a volunteer service contract—exemplary, at least three-year service as a line unit volunteer soldier in the national defence volunteer forces.

5. The following persons shall be regarded as having completed the obligatory initial military service:

1) those who have completed the obligatory initial military service established in Article 17 of this Law;

2) those who have completed service in one of the ways indicated in Paragraph 4 of this Article and received a certificate confirming the completion of such service;

3) those soldiers who have been dismissed (expelled) from the Military Academy of Lithuania, and who have finished at least one-year course of studies.

6. The obligatory initial military service may be altered into one of the service types specified in Items 1, 3, 4 and 5 of Paragraph 4 of this Article in accordance with the procedure established by the Minister of National Defence, on the decision of the Administrative Service of the National Conscription Centre (save the exception established in Paragraph 7 of this article). The duration of the service subject to completion in such way and the form of certificates conforming its completion shall be established by the Minister of National Defence on the proposal of the commander of the armed forces.

7. For the persons who aspire to the interior service, the obligatory initial military service shall be changed in the way specified in Item 4 of Paragraph 4 of this article under procedure established by the Minister of National Defence.

8. Conscripts who have graduated from schools of higher education or schools of further education and who have not been called up to do the obligatory initial military service within 12 months after the graduation from such institution, shall be exempt from obligatory initial military service.”

4.5. Paragraph 2 (wording of 22 October 1996) of Article 17 of the Law on National Conscription provides that “the obligatory initial military service shall last 12 months”.

4.6. Article 19 of the Law on National Conscription regulates the relations linked to the necessary military trainings. Article 19 (wording of 5 July 2005) of the now effective Law on National Conscription provides:

Article 19. Obligatory military trainings

1. Obligatory military trainings shall be assigned to military draftees from the age of 19 to 35:

1) in the cases provided for in Paragraph 5 of Article 9 of this Law;

2) who have not completed the obligatory initial military service for other reasons;

3) persons who aspire to the interior service—by attending them in the interior statutory institutions for professional training during the time of studying at these institutions;

4) who have been released from the obligatory initial military service upon having served less than 6 months, when during their service the circumstances provided for in Items 6–14 of Paragraph 1 of Article 9 of this Law appear. In such case the duration of obligatory military trainings shall be set taking into consideration the part of uncompleted service.

2. Obligatory military trainings shall be assigned to military draftees from 18 years of age, who have finished the training course of a young rifleman.

3. Obligatory military trainings shall be carried out in territorial units of the armed forces or local territorial national defence or other educational institutions in which obligatory military training is organised. Obligatory military trainings for persons who aspire to the interior service shall be organised in the interior statutory educational institutions for professional training in a manner co-ordinated with the commander of the armed forces.

4. Obligatory military trainings shall last from 60 to 150 days within 3 years, but not less than 20 days per year.

5. Obligatory military trainings shall be carried out in accordance to the programmes as approved by the commander of the armed forces.

6. Persons shall be sent to obligatory military trainings by a Selective Commission of the municipality. The beginning and end of the trainings shall be established by the commander of the armed forces.

7. During obligatory military trainings social guarantees established for soldiers of the obligatory initial military service shall apply to military draftees, they shall be provided with meals and supplied with clothes of an established standard. They shall be also paid payments to cover everyday expenses established for soldiers of the obligatory initial military service from State budget funds appropriated to the Ministry of National Defence and the Ministry of the Interior, taking into consideration in the institutions of which system they perform obligatory military trainings. Such social guarantees, supply provisions and payments shall, in the same order, apply to military draftees who are fulfilling their service in the manner prescribed by Item 1 of Paragraph 4 of Article 8 of this Law.”

5. On 19 November 1996, the Seimas adopted the Republic of Lithuania’s Law on Mobilisation and Preparation of Mobilisation Reserve.

Article 2 of this law defines the notions of mobilisation and mobilisation reserve:

Article 2. Basic notions used in the law

1. Mobilisation means reorganisation of the state’s economy for the martial law and transfer of the armed forces and their reserve from peace to fighting trim and call-up of the reserve draftees to the actual military service.

2. Mobilisation reserve means reserve draftees, resources of arms, ammunition, transport and other equipment, as well as of other material valuables and money, resources of medicinal purpose which are collected or accounted at the time of peace and used under the established procedure upon announcement of mobilisation or imposition of martial law.”

The Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 3, 5, 11 and 14 of the Law on Mobilisation and Preparation of Mobilisation Reserve of 23 June 1998 amended Paragraph 1 of Article 2 of the Law on Mobilisation and Preparation of Mobilisation Reserve (wording of 19 November 1996) and the notion of mobilisation was defined as follows: “Mobilisation means reorganisation of the state’s administration, municipalities and system of the economy for the martial law, transfer of the armed forces and their reserve and the formations of general and special purpose of the civil security (civil security formations) from peace to fighting trim and call-up of the reserve draftees to the actual military service.”

6. On 19 December 1996, the Seimas adopted the Republic of Lithuania’s Law on the Basics of National Security.

Paragraph 2 (wording of 19 December 1996) of Article 1 of this law prescribed that the ensuring of the national security of Lithuania denotes the creation of conditions for a free and democratic development of a Nation and State, and the protection and defence of the independence of the State of Lithuania, its territorial integrity and constitutional order.

The Second Section “General Provisions for the Defence of Lithuania” (wording of 19 December 1996) of Chapter 7 of the Law on the Basics of National Security, inter alia, prescribed:

The defence capability of Lithuania shall be based upon:

determination and resolve of the Nation to resist any aggressor;

general obligatory military service as established by law;

preparedness and armament of the armed forces and active reserves;

preparedness of citizens for total armed and unarmed resistance and civil defence;

good mutual understanding and co-operation between the armed forces and the citizenry;

the State’s reserves.

The armed forces and other structures of national defence of Lithuania shall be built up and trained for defence of the State of Lithuania and interoperability with NATO Allied Forces.

In peace time the State armed forces shall comprise all the services of the armed forces and its active reserve. Upon the introduction of martial law, or during the armed defence from aggression in war time, the armed forces shall include: the border police and other specialised police units, the Military Academy, the paramilitary units of the Riflemen’s Union and voluntary citizens’ (partisan) units of armed resistance.

The basis of Lithuania’s defence system shall be the principle of total and unconditional defence. This principle shall be consolidated in laws, other legal acts regulating defence matters, in the plans of preparation for defence of the armed forces and its active reserves, and in other documents. This principle shall also underpin the training and preparation of citizens for defence and resistance.

Lithuania shall seek to deter any potential assailant by the citizens’ general preparedness for resistance and the preparedness of the armed forces for unconditional defence in the event of aggression.”

7. On 5 May 1998, the Seimas adopted the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service, the purpose of which is to set forth “the fundamentals of organisation, command, and control of the National Defence System, and to establish the procedures for the fulfilment and support of military service and the peculiarities of civilian service within the National Defence System” (Article 1).

Article 2 (wording of 5 May 1998) of this law defined the notions used in the law, inter alia:

10. Actual military service—the service status given to citizens of the Republic of Lithuania for continuous service in obligatory military service and professional military service, as well as non-continuous service by volunteer soldiers or active reservists called up for a period of time for training exercises, defence, security, or other duties.

11. Obligatory military service—required military service for citizens of the Republic of Lithuania as established by the Constitution of the Republic of Lithuania. The services consists of an initial period of military service established by law, and follow on periodic service in the active reserve, as well as service in the event of mobilisation.

12. Professional military service—continuous military service voluntarily committed to (by means of a written contract with the Ministry of National Defence) by citizens of the Republic of Lithuania in accordance with conditions and requirements set forth by law and legal acts. These soldiers fulfil their military service in the Armed Forces or other institutions within the National Defence System as well as other institutions or international structures.

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23. Conscript—a draftee who, in accordance with the procedures and methods established by Law on Military Conscription, has not fulfilled the obligatory initial or alternative service obligation, nor has been released from it. During the period of time when a conscript is called up by the Selective Service Commission to fulfil his mandatory service until gaining a soldier’s status, the individual shall be referred to as recruit.”

The numbering of the said paragraphs of Article 2 of the law was changed by the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 3, 10, 11, 13, 25, 26, 28, 31, 34, 38, 39, 40, 43, 45, 46, 48, 50, 53, 54, 55, 56, 60, 62, 63, 64, 65, 68, 72 and 73 of the Law on the Organisation of the National Defence System and Military Service and on Supplementing the Law by Article 771 which was adopted on 7 July 1999 (Paragraphs 10–12 became Paragraphs 11–13 accordingly, and Paragraph 23 became Paragraph 24).

The Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 3, 5, 7, 9, 10, 11, 12, 13, 14, 16, 20, 21, 28, 34, 36, 38, 39, 42, 44, 45, 49, 52, 53, 54, 55, 62, 67 and 73 of the Law on the Organisation of the National Defence System and Military Service, which was adopted on 11 November 2004, amended Paragraphs 11–13 (wording of 7 July 1999) of Article 2 of the Law and set them forth as follows:

11. Actual military service shall mean the obligatory military service of citizens of the Republic of Lithuania, professional military service, national defence volunteer military service, also service by cadets.

12. Obligatory military service shall mean the obligatory military service which has been established by the Constitution of the Republic of Lithuania for a citizen of the Republic of Lithuania and which shall be fulfilled in accordance with the procedure laid down by law. It shall consist of initial military service of the duration specified by law fulfilled on a continuous basis or otherwise, a non-continuous service in the active reserve as well as service in the event of mobilisation.

13. Professional military service shall mean a continuous military service to fulfil which a citizen of the Republic of Lithuania has voluntarily committed himself under a professional military service contract and which is fulfilled in the Armed forces or at other institutions of the national defence system under the conditions and in accordance with the procedure laid down by means of legal acts, also, in the cases specified by this Law, in other states and foreign state or international institutions.”

8. On 21 March 2000, the Seimas adopted the Republic of Lithuania’s Law on Higher Education, Paragraph 5 of Article 49 whereof prescribed that citizens of the Republic of Lithuania, enrolled in higher education establishments, shall be provided opportunities to acquire a military preparation, which shall be counted as obligatory initial military service.

9. On 17 July 2000, the Seimas adopted the Republic of Lithuania’s Law on the Armed Defence and Resistance Against Aggression. Article 6 of this law consolidates the principles of obligation, universality and unconditionality of the armed defence and resistance against aggression:

1. In the event of aggression, the Republic of Lithuania must be defended by means of arms. Under the Constitution and laws, state institutions, armed forces and each citizen must defend the independence of Lithuania, its territorial integrity and constitutional order.

2. In the event of aggression, the defence of the Republic of Lithuania and its resistance against the aggressor shall be universal. The independence of Lithuania, its territorial integrity and constitutional order shall be defended by means of arms by the armed forces of the state, all the resources of the country shall be used for defence, the Nation and every citizen shall resist in all possible ways which are not prohibited by the universally recognised norms of the international law.

3. In the event of aggression, the armed defence of the Republic of Lithuania shall be unconditional. It may not be bound by the extent of aggression or any other conditions. Nobody may restrict the right of the Nation and each citizen to resist the aggressor or invader. Lithuania shall defend and resist the aggression without waiting until the international assistance is provided.”

10. On 28 May 2002, the Seimas adopted the Resolution (No. IX-907) “On the Approval of the National Security Strategy”. By this resolution, the Seimas approved of the National Security Strategy which included “the fields of policy, diplomacy, defence, economy and other fields” and the aim of which was “to provide a vision of the development of the State, to lay down the national interests and the measures required for their implementation”, as well as to establish “the tasks and objectives of the national security policy” (Item 1.1).

11. During the meeting of the North Atlantic Council which was held on 21 November 2002 in Prague, the Heads of State and Government of NATO Member States invited the Republic of Lithuania and six more states of the Eastern and Central-Eastern Europe—Bulgaria, Estonia, Latvia, Romania, Slovakia and Slovenia—to join NATO. On 26 March 2003 in Brussels, the representatives of 19 states, the present Members of NATO, signed the Protocol on the Accession of the Republic of Lithuania to the North Atlantic Treaty.

12. On 10 March 2004, the Seimas ratified the North Atlantic Treaty which had been signed on 4 April 1949 in Washington (the Republic of Lithuania’s Law on the Ratification of the North Atlantic Treaty). The treaty came into force on 29 March 2004, when Lithuania deposited its accession document to the Government of the United States of America.

Article 3 of the North Atlantic Treaty provides: “In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.”

Referring to the provisions of the North Atlantic Treaty, NATO grounds its activity on three basic principles: the peaceful settling of international disputes, the non-use of force and collective self-defence.

The principle of the peaceful settling of international disputes and the principles of the non-use of force are consolidated in Article 1 of the Treaty, in which it is prescribed that the parties of the Treaty undertake to settle any international dispute in which they may be involved by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

The principle of collective self-defence which may be considered as the basis of the whole North Atlantic Treaty, as well as NATO activity, is consolidated in Article 5 of the Treaty whereby the Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. If such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. The same Article 5 provides that any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council of the United Nations.

13. It needs to be noted that during the procedure of Lithuania’s accession to NATO, some national legal acts regulating the organisation of the national defence system were amended and supplemented, inter alia, the Law on the Basics of National Security and the National Security Strategy as approved by Seimas resolution No. IX-907 of 28 May 2002.

13.1. By the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 3 and 4 of the Law on the Basics of National Security and Chapters 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 25 of the Appendix Thereof, which was adopted by the Seimas on 22 April 2003, one made the amendments and supplements to the provisions of the Law on the Basics of National Security linked, inter alia, to the membership of the Republic of Lithuania in NATO. For example, Paragraphs 5 and 7 of Section II of Chapter 7 of the Law on the Basics of National Security were amended, setting them forth as follows:

Lithuania shall seek to deter any potential assailant by the total preparedness of citizens for resistance and the preparedness of the armed forces for unconditional defence against aggression, which shall be implemented independently and in conjunction with the forces of NATO Allies.

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In the event Lithuania perceives a direct threat to its territorial integrity, political independence or security, it shall immediately ask NATO for consultations. As a party to the North Atlantic Treaty and to other collective defence treaties of European states, Lithuania shall, in the event of an armed assault, immediately apply for armed assistance of the countries parties to these treaties in resisting the assault.”

In addition, Chapter 18 was amended together with the title—it was titled “System of National Defence.”

The now effective Section II “General Provisions of the Lithuanian Defence” (wording of 23 July 2009) of Chapter 7 of the Law on the Basics of National Security, inter alia, provides:

The defence power of Lithuania shall be based upon:

the resolve and determination of the Nation to resist any aggressor;

the assistance and solidarity provided by NATO Allies;

general obligatory military service as established by law;

readiness and provision with weapons of the armed forces and active reserve thereof;

preparedness of citizens for total armed and unarmed resistance and civil defence;

good mutual understanding and co-operation between the armed forces and civilians;

the State’s stocks and other resources of the mobilisation reserve;

the use of the potential of the country’s institutions and undertakings of science and studies.

The Lithuania armed forces and other institutions of national defence shall be set up and trained for the defence of the State of Lithuania and interoperability with NATO forces.

In peacetime, the state armed forces shall comprise all types of military forces and active reserve thereof. Upon the introduction of martial law or during an armed defence against aggression (in wartime), the armed forces shall include: the State Border Guard Service, the Public Security Service, the combat platoons of the Riflemen’s Union and other armed resistance combat (partisan) platoons of citizens and their organisations subordinate to the command of the armed forces.

The basis of Lithuania’s defence system shall be the principle of total and unconditional defence, which shall be implemented in compliance with the principle of NATO’s collective defence. This principle shall be stipulated in laws, other legal acts regulating defence, in the plans of preparation for defence of military forces and active reserve thereof and in other documents. The training and preparation of citizens for defence and resistance shall be based on this principle too.

Lithuania shall seek to deter any potential assailant by the total preparedness of citizens for resistance and the preparedness of the armed forces for unconditional defence against aggression, which shall be implemented independently and in conjunction with the forces of NATO Allies.

Lithuania shall resist an aggressor by all available means: military defence and guerrilla warfare, civil disobedience, non-collaboration and other means.

In the event Lithuania perceives a direct threat to its territorial integrity, political independence or security, it shall immediately ask NATO for consultations. As a party to the North Atlantic Treaty and to other collective defence treaties of European states, Lithuania shall, in the event of an armed assault, immediately apply for armed assistance of the countries parties to these treaties in resisting the assault.”

The now effective Section III (wording of 20 March 2008) of Chapter 7 of the said law provides:

All of the armed forces shall be employed in the military defence of the State. They must be prepared for rapid response, efficient mutual interaction and prompt regrouping as well as interoperability with the forces of NATO Allies. Special significance shall be attached to intelligence, information analysis and efficient operational command of the armed forces.

The Lithuanian military forces must be prepared for defence actions in the event of an unexpected and sudden assault or demonstration of the military force. The main task of the military forces shall be to destroy the enemy and to break its determination to fight against Lithuania.

The Lithuanian armed forces shall defend the State independently and in conjunction with the allied forces. In the event of an armed assault or threat thereof, Lithuania shall ask NATO allies for assistance in defence and for other international assistance.

In the territories occupied by the enemy, partisan actions shall be employed too.”

13.2. By the Seimas Resolution (No. X-91) “On Amending the Annex of the Seimas Resolution ‘On the Approval of the National Security Strategy’” of 20 January 2005, the National Security Strategy was amended and set forth in its new wording.

Item 2.1 of the National Security Strategy (hereinafter also referred to as the Strategy) (wording of 20 January 2005) held that “at present the state of the Republic of Lithuania in the international security system is the best since the restoration of its independence. The independence of the Republic of Lithuania is recognised and respected, national economy is growing steadily, friendly relations are maintained and practical co-operation is carried out with other states, the ethnic minorities have been successfully integrated in Lithuania’s society, experience of the functioning of institutions of democracy has been accumulated, democratic civilian control over the armed forces has been effectively implemented, the position in Euro-Atlantic and other international organisations is becoming stronger”.

Item 2.3 of the Strategy (wording of 20 January 2005) holds that “at present, the Republic of Lithuania does not observe any immediate military threat to national security and, as a result, does not regard any state as its enemy. The security policy of the Republic of Lithuania is open, transparent and non-confrontational. It defends the legitimate interests of the State of Lithuania and its citizens.”

It needs to be noted that in the Strategy (wording of 20 January 2005) one specifies enhancing response to danger and threats (Item 6.6), inter alia, improving military capabilities (Item 6.3.1), as one of the main ways and means of implementation of this strategy. In this provision of the Strategy it is also noted that as a result of positive changes in the strategic environment of the Republic of Lithuania, ongoing economic growth and NATO membership requirements, the Republic of Lithuania reorganises its defence structures and capabilities. The main focus in this reform is directed at:

6.3.1.1. creation of a modern, well-armed armed forces which are able to effectively defend the State and act together with NATO allies. When planning defence, the Republic of Lithuania as a NATO member gives priority to the capabilities which strengthen the collective defence of the whole Alliance and its readiness to address threats of any type;

6.3.1.2. highly skilled, well commanded and properly prepared military forces, as well as their regular training. The Republic of Lithuania soldiers are trained to successfully carry out complex tasks posed to the modern armed forces and justify the confidence of the public in the armed forces and the confidence of the allies in the State of Lithuania;

6.3.1.3. modernisation of the armed forces, allowing the Republic of Lithuania to fulfil international commitments made by it.”

The “Final Provisions” of the Strategy (wording of 20 January 2005) hold the following:

7.1. The Republic of Lithuania has become a NATO Member State. Membership in this organisation ensures military, political and economic security of the Republic of Lithuania.

7.2. Membership in the European Union fosters economic development and prosperity, provides non-military guarantees of security of the Republic of Lithuania. Accession to the democratic community of Western states ensures internal stability and paves the way for the new opportunities of cooperation to counteract organised crime and to respond to natural or technological calamities.

7.3. It is anticipated that the conditions, which could affect the vital interests of the Republic of Lithuania, will remain stable in the future. However, the Republic of Lithuania must be adequately prepared to face new risk factors and threats which may be the result of changing security environment.

7.4. The National Security Strategy is regularly adjusted to the changes in the internal or external security environment.”

14. On 17 May 2007, the Seimas adopted the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2007, Establishing the Planned Principal Structure of the Armed Forces in 2012 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service. Item 2 of Paragraph 2 of Article 2 of this law provides that in the year 2007, the number of soldiers of the obligatory initial military service may be 2600.

15. On 13 March 2008, the Seimas adopted the Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” whose provisions are impugned in this constitutional justice case. The Resolution provides:

The Seimas of the Republic of Lithuania,

taking into consideration the fact that, according to provisions of the Constitution of the Republic of Lithuania and the Law on the Basics of National Security, the defence of the State of Lithuania is total, namely, that in the event of an armed attack, Lithuania shall be provided with armed defence by the armed forces of the State and NATO Allies, that resources of the State shall be employed in the defence effort, and that each citizen and the Nation shall offer resistance by every means allowed under international law;

noting that, according to Article 139 of the Constitution of the Republic of Lithuania, defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania, whereas the Seimas must, by means of a law, lay down the procedure for fulfilling the duty of military service as stipulated in the Constitution;

evaluating the extent and nature of threats, dangers to and risks for the national security of Lithuania as provided for in the National Security Strategy as approved by the Seimas;

believes that it is expedient to switch to the Lithuanian Armed Forces organised on the grounds of professional and volunteer military service;

states the necessity to preserve the institution of military conscription providing for the obligatory military service in the event of mobilisation and to review the need of fulfilling the obligatory initial military service on an annual basis when approving margin numbers of soldiers by a decision of the Seimas of the Republic of Lithuania;

stresses that civic and national education, consolidation of volunteer military service and activities of the Lithuanian Riflemen’s Union is a prerequisite for increasing the defence power of this country;

proposes that the Government of the Republic of Lithuania draft required legislative amendments, also submit to the Seimas for approval on an annual basis during the autumn session the principal structure of the Armed Forces for the coming year, including the margin numbers of soldiers determined according to the needs of shifting to the armed forces organised on the basis of professional and volunteer military service;

notes that the reform of military service providing for a shift to professional and volunteer military service must be based on appropriate allocations from the State budget through continuous increase of the financing of the national defence system.”

In this constitutional justice case, the petitioner impugns the following provisions of the Resolution:

the provision of the fifth paragraph: “it is expedient to switch to the Lithuanian Armed Forces organised on the grounds of professional and volunteer military service”;

the provision of the sixth paragraph, to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision;

the provision of the eighth paragraph, to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service.

16. On 18 June 2008, the Government adopted the Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording”. By this resolution one approved the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording the provisions of which are impugned in this constitutional justice case. The Conception was prepared while implementing Item 880 of the Measures of the Implementation of the 2006–2008 Programme of the Government as approved by government resolution No. 1020 of 17 October 2006 which provides for the measure—to prepare, while taking into account the changing needs of the system of administration of military conscription and creation of the system of recruitment and incentive, the Republic of Lithuania’s Draft Law on Amending the Law on Military Conscription. While preparing the Conception, one took account of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 (Item 3.1 of the Conception).

The Conception discusses the general characteristics of the subject of regulation and aims of the Republic of Lithuania’s Law on Military Conscription with its new wording; it specifies the legal acts which regulate military conscription at present; it contains an analysis of insufficient efficiency of the legal norms which are proposed to be annulled or amended, it also contains a review of the law-making of foreign states, an analysis of the legal norms and principles of international law and European Union law; it discusses the main provisions of regulation of social relations, possible consequences of the anticipated legal regulation, it gives financial and economic reasoning, it provides for the structure of the law and legal acts which are expected to be amended or annulled.

The following amendments, inter alia, of the legal regulation proposed in the Conception should be noted:

supplement of the grounds for the postponement of the obligatory initial military service and alternative national defence service, by including new items (due to the temporary deterioration in the health, as well as of the law which regulates the principal structure of the armed forces in the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0) (Item 18 of the Conception);

establishment of mandatory participation of military draftees in one-day events of National Security. During such educational event of National Security, military draftees would be explained about the importance of Homeland defence, the basis of military conscription of citizens and they would be familiarised with the armed forces and military service (similarly like the civil education implemented in Portugal); it would be a constituent part of military service. It would be obligatory to all youngsters (men) from 16 years old, save the disabled ones, members of the Riflemen’s Union and/or those who finished the courses of the defender of the Homeland (these would be voluntary, short-term courses, during which young people would be familiarised with the theoretical basis of defence of the Homeland and they would gain elements of practical knowledge in military defence; the participation of these youngsters in the one-day events of National security would be voluntary) (Item 20 of the Conception).

Item 15 of the Conception held the following:

15. In the procedure of the preparation of the Conception, one followed the experience of the Member States of the North Atlantic Treaty Organisation (hereinafter referred to as NATO). NATO does not specify what model of the armed forces to choose, it is left for the discretion of the Member States. Most NATO Member States have already refused the obligatory initial military service, a few states are considering that and plan to refuse it and 6 states are not going to refuse it. Taking account of the changing needs of administration of military conscription in Lithuania, while preparing the Conception, one analysed the legal regulation of military service of various states, however, a few most important examples of experience in the sphere of administration of military conscription were chosen (those of Portugal, Hungary, the Netherlands and Denmark). The following conclusions have been drawn:

15.1. The example of Portugal in strengthening education on the questions of defence would be acceptable for Lithuania. In 1997, in Portugal, the Constitution was amended and the provisions regarding the obligatory military service of conscripts were refused, however, one consolidated obligatory education of citizens on questions of defence. All boys must participate in the events of the National Defence Day (it is also considered to establish this obligation for girls). The National Defence Day performs a double role: it is both civil education (during which it is explained about the essence of citizenship, the duties of citizens in defence of the state, the importance of national defence) and the means of campaigning for and attracting of youngsters to the armed forces (the youngsters are introduced with the armed forces, its functions, tasks, armament, history; also the advantages of serving in the armed forces are shown in order to make the youngsters to be interested in the service as much as possible).

15.2. In addition, the examples of Hungary and the Netherlands regarding the suspension of the performance of the obligatory initial military service are relevant for Lithuania. Quite a number of states refused the obligatory initial military service without providing for the reservations regarding the renewal of the obligatory initial military service, however, Hungary and the Netherlands established such reservations. When the parliament amended the Constitution, in Hungary the call-up to perform the obligatory military service was suspended in 2004. However, the law provides that the call-up may be renewed if two thirds of members of the parliament decide so.

In the Netherlands, the obligatory military service was officially suspended in 1997. The essence of the suspension was that the citizens were not obliged to serve in the armed forces until this is not necessary for the security of the state. Upon reaching the age of 17, every male receives a letter in which it is stated that he is registered as a military draftee, however, that he does not have to present himself for service. The Netherlands did not formally abolish the call-up, therefore, the laws and procedures which regulate the call-up of the personnel of the military conscription are still effective. In Article 98 of the Constitution of the Netherlands it is specified that military service is compulsory and the power to defer the call-up to active service shall be regulated by Act of Parliament.

15.3. One should also pay attention to the example of Denmark—how to ensure the impartial and transparent selection to the obligatory initial military service, how to strengthen the cooperation between the society and the armed forces. On the Day of the Armed Forces one strengthens the cooperation between the armed forces and the society and seeks to attract young men to the armed forces. Upon having carried out the health check of a young man, who participates in the events of this day and after having talked to him, one decides whether he is suitable for the military service, suitable with limitations or unsuitable. If he is suitable or suitable with limitations, a young man is randomly selected to perform the obligatory initial military service. The purpose of this way is to ensure the impartial selection of soldiers. Random selection is the proper means as only a limited number of soldiers of mandatory service must be selected.”

16. In this constitutional justice case, the petitioner impugns the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 (Chapter VII “Basic Provisions of Regulation of Social Relations” of the Conception) of the Conception.

17. On 15 July 2008, the Seimas adopted the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service whose provisions are impugned in this constitutional justice case.

Paragraph 2 of Article 3 of this law provides:

2. The total margin number of soldiers, the margin number of soldiers of professional and obligatory initial military service, volunteer soldiers and other soldiers of the active reserve and of cadets established for the year 2013 shall be up to 14,650. This number shall compose the following:

1) soldiers of professional military service—up to 8,450, out of which up to 12 generals and admirals, up to 45 colonels and naval captains, up to 150 lieutenant colonels and commanders and up to 400 majors and lieutenant commanders;

2) soldiers of obligatory initial military service—0;

3) volunteer soldiers and other soldiers of the active reserve—not less than 6,000;

4) cadets—up to 200.”

In this constitutional justice case, the petitioner impugns Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Structure of the Armed Forces in 2013, in which the margin number of soldiers of the obligatory initial military service (0) is established.

18. On 15 July 2008, the Seimas adopted the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service whose provisions are impugned in this constitutional justice case.

Paragraph 2 of Article 3 of this law provides:

2. The total margin number of soldiers, the margin number of soldiers of professional and obligatory initial military service, volunteer soldiers and other soldiers of the active reserve and of cadets established for the year 2014 shall be up to 14,700. This number shall compose the following:

1) soldiers of professional military service—up to 8,450, out of which up to 12 generals and admirals, up to 45 colonels and naval captains, up to 150 lieutenant colonels and commanders and up to 400 majors and lieutenant commanders;

2) soldiers of obligatory initial military service—0;

3) volunteer soldiers and other soldiers of the active reserve—not less than 6,000;

4) cadets—up to 250.

3. The total margin number of statutory servants in the civil national defence service established for the year 2014 shall be up to 200.”

In this constitutional justice case, the petitioner impugns Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Structure of the Armed Forces in 2014, in which the margin number of soldiers of the obligatory initial military service (0) is established.

Therefore, according to the said laws, call-up to the obligatory initial military service in 2013 and 2014 is not provided for.

19. On 15 September 2008, the Minister of National Defence issued the Order (No. V-868) “On the Postponement of the Obligatory Initial Military Service” suspending the call-up to the obligatory initial military service and stipulating that the citizens who were called up to the obligatory initial military service before the order was passed, shall serve in the armed forces until 1 July 2009.

Under Article 105 of the Constitution, the Constitutional Court shall consider and adopt a decision whether the laws and other acts adopted by the Seimas are not in conflict with the Constitution (Paragraph 1), as well as if acts of the President of the Republic and acts of the Government of the Republic are not in conflict with the Constitution and law (Paragraph 2).

It is not the matter of competence of the Constitutional Court to assess also the compliance of legal acts of the ministers, inter alia, those which establish the procedure of performance of the obligatory initial military service, with the Constitution and/or laws.

The Constitutional Court has held that at present the legal regulation is established by the Law on the Proceedings of Administrative Cases and other laws whereby decision on the compliance of the legal acts, passed by other subjects of law-making (thus, those passed not by the Seimas, the President of the Republic or the Government and not adopted by referendum) with legal acts of greater legal force, inter alia (and, first of all), with the Constitution, is assigned to the jurisdiction of administrative courts; if the administrative court rules such a legal act to be in conflict with the Constitution (other legal act of greater legal force), then, under the Constitution and laws, such a decision of the said court has an erga omnes impact on the whole practice of the application of corresponding legal acts (parts thereof) (the Constitutional Court’s rulings of 24 October 2007 and 2 September 2009).

20. While summing up the discussed legal regulation consolidated in the legal acts whose provisions are impugned in this constitutional justice case, it needs to be noted that by this regulation:

one seeks to reorganise the Lithuanian armed forces organising it on the grounds on the professional and volunteer military service;

one provides that the obligatory military service should be preserved in case of mobilisation;

one emphasises the necessity to prepare the citizens for the defence of the country, inter alia, for the obligatory military service in the event of mobilisation, by organising the civil and national trainings, practical trainings of military defence, educational events of national defence, etc.;

one provides that the need of performance of the obligatory initial military service should be reconsidered every year by a decision of the Seimas;

one proposes to supplement the grounds for the postponement of the obligatory initial military service and alternative national defence service;

one does not provide for the call-up to the obligatory initial military service in 2013 and 2014;

one emphasises the necessity to support the reform of military service, while moving to the professional and volunteer military service, by the correspondingly formed subsidies and consistent increase in financing the national defence system.

Therefore, the impugned legal regulation provides for the reform of the military service which is linked, inter alia, to the reorganisation of the obligatory initial military service by assessing the necessity of performance of this service every year according to the concrete needs of defence in the corresponding period. It also needs to be noted that the impugned legal regulation does not abolish the institute of the obligatory military service in general; it is proposed to organise the preparation of citizens for the defence of this country also by means different from the obligatory initial military service.

III

1. In this constitutional justice case, the petitioner impugns the compliance of the legal acts which provide for the tendencies in the policy of organisation of the national defence system, as well as the compliance of the legal acts which regulate the relations linked to the military service with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

1.1. Paragraph 2 of Article 3 of the Constitution provides that the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force.

1.2. Article 139 of the Constitution provides: the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania (Paragraph 1); citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law (Paragraph 2).

2. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held more than once that all provisions of the Constitution are interrelated and constitute a single and harmonious system, that there is a balance among the values consolidated in the Constitution, that it is not permitted to construe any provision of the Constitution so that the content of another provision of the Constitution is distorted or denied, since, thus, the essence of the entire constitutional legal regulation would be distorted and the balance of constitutional values would be disturbed (the Constitutional Court’s rulings of 4 March 2003, 16 January 2006 and 14 March 2006).

In its acts the Constitutional Court has also held: it is due to the fact that the Constitution is an integral act that it is comprised of various provisions—both the constitutional norms, and the constitutional principles—among which there may not exist and there is no contradiction, and which constitute a harmonious system; that the constitutional principles are derived from the entirety of the constitutional legal regulation expressing the spirit of the Constitution, and from the meaning of the Constitution as the act consolidating and protecting the system of the major values of the state community, the civil Nation, and which provides the guidelines for the entire legal system, and due to the fact that the letter of the Constitution may not be interpreted or applied in the manner which denies the spirit of the Constitution, the Constitution may not be interpreted only literally by applying the sole linguistic (verbal) method; when interpreting the Constitution, one must apply various methods of interpretation of law: systemic, the one of general principles of law, logical, teleological, the one of intentions of the legislature, the one of precedents, historical, comparative, etc.; only such comprehensive interpretation of the Constitution may provide conditions for the realisation of the purpose of the Constitution as a social contract and an act of the supreme legal force, and for ensuring that the meaning of the Constitution will not be deviated from, that the spirit of the Constitution will not be denied, and that the values upon which the Nation has based the Constitution adopted by it will be consolidated in reality; the construction of all the provisions of the Constitution in the context of the constitutional principle of a state under the rule of law is a necessary pre-requisite for exhaustive construction of the Constitution (the Constitutional Court’s rulings of 25 May 2004 and 13 December 2004).

3. The provisions of Articles 3 and 139 of the Constitution (in this constitutional justice case, the compliance of the legal acts is impugned with regard to these provisions) consolidate the principles of integrity of the State of Lithuania, its independence and territory, the principles of defence of the constitutional order and of national defence, as well as the rights and duties of the citizen which are related thereto. These provisions of the Constitution are interrelated, together with other provisions and principles of the Constitution they compose the integral system of constitutional regulation of national defence, therefore, they must also be construed in a systemic manner, inter alia, in the context of the constitutional principle of a state under the rule of law.

3.1. As mentioned before, Paragraph 2 of Article 3 of the Constitution consolidates the right of each citizen to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force.

In its ruling of 23 November 1999, the Constitutional Court held: “The constitutional order of the Republic of Lithuania is based on of the priority of the rights and freedoms of individuals and citizens as the ultimate value, as well as on the principles establishing the sovereignty of the Nation, independence and territorial integrity of the state, democracy, the republic as the form of state governance, the separation of powers, their independence and balance, local self-government, etc. Protection of the constitutional order means that it is not permitted that the social, economic and political relations established in the Constitution which constitute the fundamentals of the life of individuals, society and the state be encroached upon.”

3.2. The Constitutional Court has held more than once that the state is an organisation of the entire society (the Constitutional Court’s rulings of 25 November 2002, 4 March 2003, 30 September 2003, 3 December 2003, and 30 December 2003). In the acts of the Constitutional Court it has also been held that: having adopted the Constitution, the legal act of the supreme legal force, by referendum, the Lithuanian Nation formed the standardised basis for the common life of its own, as the state community—the civil Nation, and consolidated the state as the common good of the entire society; The Constitution is based on universal, unquestionable values, inter alia, the respect for law and the rule of law, a limitation on the scope of powers, the duty of state institutions to serve the people and their responsibility for society, justice, striving for an open, just and harmonious society and state under the rule of law, the recognition of human rights and freedoms and their respect (the Constitutional Court’s rulings of 25 May 2004 and 19 August 2006). In the Constitutional Court’s ruling of 19 August 2006 it was also held that one of the most important obligations of a democratic state based on law and justice is to respect, defend and protect the values, as well as human rights and freedoms, upon which the Constitution itself adopted by the Nation is based and whose real assessment, defence and protection is raison d’être of the state itself; otherwise, one would not be able to consider the state as the common good of the whole society.

3.3. In the context of the constitutional justice case at issue it needs to be noted that there is a special legal link between the state and its citizens. The Constitutional Court’s ruling of 30 December 2003, inter alia, held: citizenship is a permanent, uninterrupted legal link between the person and the state. It is a permanent (uninterrupted) legal link between the citizen and the state that permits distinguishing this special legal link from the legal link which appears between the state and a foreigner or a stateless person, who resides in it either permanently or temporarily: when the foreigner or the stateless person leaves the state, his legal link with the state discontinues. When the citizen leaves for another state, his legal link with the state whose citizen he is persists. Citizenship expresses legal membership of the person in the state, reflects legal belongingness of the person to the nation as a community organised into a state (state community). The link between citizens and the state is mutual. State power can only function when there is permanent jurisdiction over residents of this state, the absolute majority of whom are, as a rule, citizens of that state. The legal link with the state is necessary to citizens so that all their rights and freedoms might be guaranteed, which are enjoyed by citizens. Citizenship determines the legal status of the person, enjoyment of citizenship is a precondition for enjoyment of all rights and freedoms entrenched in the Constitution and laws, and that for performing established duties. Under the Constitution, certain rights are enjoyed only by citizens: the right to participate in the government of the state both directly and through their democratically elected representatives (Paragraph 1 of Article 33), the right to present a proposal to alter or supplement the Constitution of the Republic of Lithuania (Paragraph 1 of Article 147); the right to elect and be elected to the Seimas (Paragraph 1 of Article 34, Article 56); the right to elect and be elected President of the Republic (Paragraph 1 of Article 34, Article 56, Paragraphs 1 and 2 of Article 78); the right to be judges (Paragraph 1 of Article 112); the right to join the state service (Paragraph 1 of Article 33); the right to request that a referendum be called (Paragraph 3 of Article 9); the right of legislative initiative (Paragraph 2 of Article 68). The Constitution and laws also establish certain other rights enjoyed only by citizens of the Republic of Lithuania. Under the Constitution, only citizens of the Republic of Lithuania also have certain duties: the duty to defend the State of Lithuania against a foreign armed attack (Paragraph 1 of Article 139 of the Constitution); the duty to perform military or alternative national defence service (Paragraph 2 of Article 139 of the Constitution).

3.4. The following provisions and principles linked to the security of the state, protection of the sovereignty and the constitutional order, the foreign and defence policy of the state which are consolidated in the Constitution, inter alia: the Lithuanian Nation, having for centuries staunchly defended its freedom and independence, has adopted and proclaimed the Constitution (the Preamble to the Constitution), the State of Lithuania shall be an independent democratic republic (Article 1), the State of Lithuania shall be created by the Nation; sovereignty shall belong to the Nation (Article 2); no one may restrict or limit the sovereignty of the Nation or make claims to the sovereign powers belonging to the entire Nation (Paragraph 1 of Article 3); in implementing its foreign policy, the Republic of Lithuania shall follow the universally recognised principles and norms of international law, shall seek to ensure national security and independence, the welfare of the citizens and their basic rights and freedoms, and shall contribute to the creation of the international order based on law and justice (Paragraph 1 of Article 135); the Republic of Lithuania shall participate in international organisations provided that this is not in conflict with the interests and independence of the state (Article 136); there may not be any weapons of mass destruction and foreign military bases on the territory of the Republic of Lithuania (Article 137); the main issues of state defence shall be considered and co-ordinated by the State Defence Council which consists of the President of the Republic, the Prime Minister, the Speaker of the Seimas, the Minister of National Defence, and the Commander of the Armed Forces (Paragraph 1 of Article 140); the Seimas shall impose martial law, announce mobilisation or demobilisation, adopt a decision to use the armed forces when the need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania (Paragraph 1 of Article 142); in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, the President of the Republic shall immediately adopt a decision on the defence against the armed aggression, impose martial law throughout the state or in its separate part, announce mobilisation, and submit these decisions to the next sitting of the Seimas for approval, while in the period between sessions of the Seimas he shall immediately convene an extraordinary session of the Seimas (Paragraph 2 of Article 142); the state shall take care of and provide for the servicemen who lost their health during the military service as well as for the families of servicemen who lost their lives or died during the military service (Paragraph 1 of Article 146); the state shall also provide for citizens who lost their health while defending the state as well as for the families of the citizens who lost their lives or died in defence of the state (Paragraph 2 of Article 146), imply the conclusion that independence of the state, its territorial integrity and constitutional order are among the most important constitutional values the protection of which is the priority obligation of state power and all citizens. Ensuring the implementation of this duty is a guarantee of the security of the state. In order that the citizens who have the constitutional duty to defend the state against a foreign armed attack could properly implement this duty, they must be well-prepared for that. Such preparation is ensured, inter alia, by the military service.

Thus, the constitutional duty of citizens to perform military or alternative national defence service which is consolidated in Paragraph 2 of Article 139 of the Constitution is not an end in itself—it is directly related to the duty to defend the state against a foreign armed attack which is consolidated in Paragraph 1 of Article 139 of the Constitution, as well as, in a certain aspect, with the right of citizens to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the state which is consolidated in Paragraph 2 of Article 3 of the Constitution.

4. It needs to be noted that Paragraph 2 of Article 139 of the Constitution provides for the duty to perform military or alternative national defence service, however, the Constitution does not expressis verbis establish all possible kinds of military service, forms of the obligatory military service and requirements for the subjects of military service. In the context of the constitutional justice case at issue it needs to be noted that the Constitution also does not expressis verbis consolidate the duty to perform such obligatory military service which is named in laws as obligatory initial military service. In the Constitution, the legislature is committed to establish the organisation of national defence system. Thus, the Constitution establishes the prerogative of the legislature so that it, while heeding the norms and principles of the Constitution, would establish the regulation of the national defence system, inter alia, military service.

4.1. In this context it needs to be noted that the constitutional concept of the obligatory military service which is consolidated in Paragraph 2 of Article 139 of the Constitution may not be identified with the notion of the actual military service which is used in Article 141 of the Constitution. The grounds for the organisation of the actual military service may be very varied ones. In the context of the constitutional justice case at issue it needs to be noted that the actual military service may be organised both on the grounds of professional military service and on the grounds of voluntary or obligatory military service (or several said kinds of service). It is the discretion of the legislature to establish the legal regulation of organisation of the actual military service. However, no matter how the actual military service is organised, the legislature must establish such legal regulation that the constitutional purpose of such service—ensuring the preparation to defend the state against a foreign armed attack and its defence—would not be denied.

4.2. While regulating by law the relations linked to the organisation of the national defence system, inter alia, military service, the legislature has a rather broad discretion. For example, it may, by means of a law, establish kinds of military service, forms of the obligatory military service, age, health and other requirements for the subjects of military service, procedure for performance of military service, conditions of exemption from the obligatory military service linked to the circumstances due to which citizens may not perform such service (age, state of health, etc.).

4.3. However, while implementing the said discretion, the legislature must also heed the norms and principles of the Constitution. Such a requirement arises for the legislature, inter alia, from Paragraph 2 of Article 5 of the Constitution in which it is prescribed that the scope of power shall be limited by the Constitution, and it also arises from the constitutional principle of a state under the rule of law.

In its rulings, the Constitutional Court has held more than once that Article 5 of the Constitution consolidates, inter alia, the principle of the separation of powers; the constitutional principle of the separation of powers is the main principle of the organisation and activity of a democratic state under the rule of law; Paragraph 2 of Article 5 of the Constitution reflects not only the constitutional principle of the separation of powers, but also the principle of supremacy of the Constitution and the constitutional principle of a state under the rule of law; if the legal regulation is established so that not only the powers of the institution of state power pointed out in Paragraph 1 of Article 5 of the Constitution are unreasonably expanded from the constitutional standpoint, but also the powers of some other state institution, it should also be held that the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution is violated as well.

While construing Paragraph 2 of Article 5 of the Constitution, the Constitutional Court has held more than once that the Seimas, as the issuer of laws and other legal acts, is independent insofar as its powers and its broad discretion are not limited by the Constitution, inter alia, the constitutional principles of a state under the rule of law, the separation of powers, responsible governance, protection of legitimate expectations, legal clearness, and other principles.

It needs to be emphasised that, while passing laws, the Seimas is bound by the Constitution, as well as by the laws that it adopted itself. It 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, 14 January 2002, and 24 January 2003).

4.4. The Constitutional Court has also held that, under Item 2 of Article 94 of the Constitution, the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic; under the Constitution, the Government, while adopting legal acts, must follow the valid laws and, while enforcing certain laws, it may not violate other laws; the legal acts adopted by the Government, which are substatutory legal acts, may not contain any legal regulation competing with that established in laws; it is important that the Government adopt substatutory legal acts without exceeding its powers, and that these substatutory legal acts be in conformity with the Constitution and laws; if the legal regulation established in government resolutions competed with the legal regulation established in laws or if they were not grounded on the laws, not only the constitutional principles of a state under the rule of law and the separation of powers and Item 2 of Article 94 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution, in which it is prescribed that the scope of power shall be limited by the Constitution, would be violated.

4.5. As mentioned before, while implementing its function of legislation, the legislature is bound by the Constitution. If the legal regulation established by the legislature were not grounded on the provisions and principles of the Constitution, such legal regulation would also violate the provision of Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law. It needs to be noted that these requirements which stem from the Constitution should also be applied to the Government when it implements its constitutional powers to adopt substatutory legal acts.

5. While construing the said provisions and principles of the Constitution in the context of the constitutional justice case at issue, it needs to be noted that, while implementing the discretion to regulate the organisation of national defence which is established in Paragraph 3 of Article 139 of the Constitution, the legislature must heed the norms and principles of the Constitution—in the laws it must establish such regulation of organisation of the system of national defence, inter alia, military service (including obligatory military service), which would ensure the protection of some of the main constitutional values—independence of the state, territorial integrity and constitutional order—and a proper defence of the state against a foreign armed attack.

In its ruling of 13 December 2004, the Constitutional Court held that some state functions are performed, first of all (or in majority of cases), through state (and municipal) civil institutions, the others—through military and/or paramilitary state institutions. It has also been held that, under the Constitution, the state service is service to the State of Lithuania and the civil Nation, therefore the state service should be loyal to the State of Lithuania and its constitutional order; the Constitution does not tolerate the situations where any link of the system of the state service, any state or municipal institution or individual state servants act contrary to the interests of the State of Lithuania or violate the constitutional order of the State of Lithuania. In the said ruling it was also held that the constitutional imperative of loyalty of the state service to the State of Lithuania raises special requirements as well. State servants not only must not violate the Constitution and laws themselves, but also bear the duty to take all the necessary positive actions when protecting the constitutional order of the State of Lithuania.

It has been mentioned that independence of the state, its territorial integrity and constitutional order are among the most important constitutional values the protection of which is the priority obligation of state power and all citizens. Therefore, in order to implement the function of protection of the state which includes the protection of constitutional values as priorities, one needs a separate institutional system formed from the military or paramilitary state institutions. Service in this system is one of the kinds of the constitutional institute of the state service as a service for the State of Lithuania and the civil Nation which also includes military service, which directly ensures the implementation of the function of state defence. Therefore, the main constitutional requirements raised for the state service, inter alia, the requirement of loyalty to the state, are applied for the service in paramilitary or military institutions.

In this context it needs to be noted that even though the constitutional concept of the state service includes military service, however, taking account of the constitutional importance of the function of state defence which is implemented by military service, which, as mentioned before, includes the protection of the priority constitutional values, it is separated from the system of the civil service.

The Constitutional Court has held that, under the Constitution, military, paramilitary and security services are separated from the civil service. The differentiated concept of state civil institutions as well as state military and paramilitary institutions is consolidated in the Constitution. It provides the legal prerequisites for differentiated regulation of relations, linked with the activity of state civil institutions as well as state military and paramilitary institutions, and for establishing the legal status of persons employed at state civil and military as well as paramilitary institutions which would have certain specific characteristics (the Constitutional Court’s rulings of 24 December 2002 and 13 December 2004).

In this context, it needs to be noted that, under Article 140 of the Constitution, the main issues of state defence shall be considered and co-ordinated by the State Defence Council which consists of the President of the Republic, the Prime Minister, the Speaker of the Seimas, the Minister of National Defence, and the Commander of the Armed Forces. The State Defence Council shall be headed by the President of the Republic (Paragraph 1); the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State (Paragraph 2); the Government, the Minister of National Defence, and the Commander of the Armed Forces shall be responsible to the Seimas for the administration and command of the armed forces of the state (Paragraph 3); the Minister of National Defence may not be a soldier who has not yet retired to the reserve (Paragraph 3). It also needs to be noted that, under Article 141 of the Constitution, persons performing actual military service or alternative service, as well as officers of the national defence system, the police and the interior, non-commissioned officers, re-enlistees, and other paid officials of paramilitary and security services who have not retired to the reserve may not be members of the Seimas or members of municipal councils, and they may not hold elective or appointive office in the state civil service.

6. The aforementioned provisions and principles consolidated in the Constitution linked to the security of the state, protection of sovereignty and constitutional order, the state foreign and defence policy, organisation of the system of national defence, as well as the aforementioned statements of the official constitutional doctrine linked to the construction of the constitutional concept of state service, imply the constitutional concept of military service which includes the following most important aspects: military service is intended for the implementation of the defensive functions of the state, therefore, it is one of the kinds of state service, however, it is separated from the civil service; military service guarantees protection of some of the main constitutional values—independence of the state, territorial integrity and constitutional order—and proper defence of the state against a foreign armed attack; subjects of military service have a specific legal status, special requirements are raised to them and prohibitions are established, inter alia, the constitutional prohibition on being members of the Seimas or members of municipal councils and holding elective or appointive office in the state civil service which is consolidated in Article 141 of the Constitution; the legal regulation of the military service which is one of the grounds of the national defence system is a constitutional prerogative of the legislature consolidated in Paragraph 3 of Article 139 of the Constitution.

7. It needs to be noted that from the Constitution, inter alia, the provisions of Articles 3, 139, 141 and 142 thereof, the duty stems for the legislature to establish such legal regulation whereby the Republic of Lithuania would have regular, well-organised armed forces able to implement the constitutional functions, inter alia, the obligation to defend the state against a foreign armed attack. However, the legislature, while regulating the relations linked to the organisation of the national defence, inter alia, the armed forces, has a rather broad discretion. In the context of the constitutional justice case at issue, it needs to be noted that the legislature, while heeding the norms and principles of the Constitution, may choose various models of the armed forces and forms of military service. The Constitution does not prohibit establishing such legal regulation under which the Lithuanian armed forces whose purpose is to protect and defend the state and its citizens from the armed attack would be organised on the grounds of professional and voluntary military service. Article 139 of the Constitution may not be interpreted as meaning that the armed forces must be organised only on the grounds of obligatory military service and that it is a duty of every citizen to perform such obligatory military service which is named in laws as the obligatory initial military service.

7.1. It also needs to be noted that the legislature, having consolidated in the law such model of organisation of the armed forces, under which the armed forces are organised on the grounds of professional and voluntary military service, must heed the provisions of the Constitution, inter alia, the imperative consolidated in Paragraph 1 of Article 139 of the Constitution that the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania. In this context it needs to be emphasised that the formation of the armed forces organised on the grounds of professional and voluntary military service does not deny the constitutional obligation of citizens to defend the State of Lithuania against a foreign armed attack, while at the same time the legislature is not exempted from the duty to establish such legal regulation whereby legal preconditions would be created to prepare the citizens properly for the implementation of this constitutional obligation.

In the acts of the Constitutional Court, it has been more than once held that:

the Constitution as a legal act is expressed in a certain textual form, it has certain linguistic expression, however, as it is not permitted to treat law as a mere text, thus, it is not permitted to treat the Constitution only as its textual form (the Constitutional Court’s rulings of 25 May 2004 and 16 January 2006);

it is impossible to construe constitutional norms and principles on the basis of the legal acts adopted by the legislature and other subjects of law-making, as, thus, the supremacy of the Constitution in the legal system is denied (the Constitutional Court’s rulings of 12 July 2001, 1 July 2004, 13 December 2004, its decision of 10 February 2005, and its ruling of 28 March 2006).

7.2. While interpreting these doctrinal provisions in the context of this constitutional justice case at issue, it needs to be held that that the formula “Citizens of the Republic of Lithuania must perform military <...> service” consolidated in Paragraph 2 of Article 139 of the Constitution may not be construed in the same way as the concept of the obligatory military service is interpreted in ordinary law. While construing this formula which is consolidated in the Constitution, one must heed the constitutional meaning and purpose of the institute of military service. As mentioned before, the constitutional purpose of military service, inter alia, obligatory military service, is to ensure the preparation to defend the state against a foreign armed attack and its defence. The obligatory military service is necessary so that the citizens would be prepared to defend the state, however, it does not mean that the preparation may be implemented only in one way—by performing the obligatory initial military service and that each citizen has the duty to perform namely the obligatory initial military service. The constitutional duty of the citizens to perform military service and to prepare for the defence of the state against a foreign armed attack may be implemented in various forms the variety of which is implied, inter alia, by the variety of means of the state’s defence. Therefore, the legislature, while regulating the relations linked to military service, must heed the constitutional purpose of this service and establish such legal regulation which would ensure the implementation of the constitutional purposes of military service, i.e. proper preparation of citizens for the defence of the state against a foreign armed attack. In this context it needs to be noted that, as mentioned before, while regulating the relations of military service, the legislature may establish, inter alia, the conditions for exemption from the obligatory military service linked to the objective circumstances due to which the citizens may not perform such service, i.e. age, state of health, etc.

8. The Constitution, inter alia, Article 142 thereof, consolidates the institute of mobilisation. The concept of mobilisation is universally interpreted as meaning the preparation of the systems of state governance and economy, as well as of the armed forces for martial law, inter alia, by calling up the citizens of the state to the armed forces when there is a threat of the armed attack against the state or a war begins. Under the Constitution, inter alia, Articles 139 and 142 thereof, the purpose of mobilisation is to organise the defence of the state against a foreign armed attack. One of the means to ensure mobilisation is call-up of citizens to perform obligatory military service. In this context, it needs to be noted that the legislature has the constitutional duty to regulate by law the procedure of performance of the obligatory military service in the event of mobilisation which would ensure the defence of the state from the armed aggression. In addition, the legislature must also establish such legal regulation whereby legal preconditions would be created to properly prepare the citizens in advance so that when the mobilisation is announced, they could properly implement their constitutional duty to defend the state. Therefore, in the state there must be not only the regular armed forces, but also a necessary number of citizens properly prepared to defend the state.

9. While regulating the institute of the obligatory military service, the legislature has to take account not only of the provisions of Paragraph 2 of Article 139 of the Constitution which consolidates, inter alia, certain constitutional grounds of the obligatory military service, but also of other provisions of the Constitution, constitutional values and constitutional principles, inter alia, of the constitutional principles of the State of Lithuania, its independence, territorial integrity, defence of constitutional order and national defence. The protection of the said constitutional values is ensured, inter alia, by establishing the system of military service and preparation of citizens to defend the state which also includes the institute of the obligatory military service. Therefore, while regulating the legal relations of the system of national defence, inter alia, military service, the legislature must heed the constitutional provisions and principles which oblige to ensure proper national defence. Thus, such legal regulation must be established by taking account of the geopolitical situation and other factors which influence state security. The legislature must assess possible threats for the state security, the long-term political processes, the state’s participation in the organisations of mutual assistance of states, the international obligations of the state in the missions ensuring security and peacekeeping, etc.

Only such legal regulation of the national defence system, inter alia, military service, would not be in conflict with the Constitution, which would be established taking account of possible threats for the state’s security and ensure the defence of the state against a foreign armed attack, inter alia, a proper preparation of citizens for the defence of the state against a foreign armed attack.

10. In this context it needs to be noted that the notion of the preparation of citizens to defend the state is rather broad, including not only the preparation of citizens to defend the state against a foreign armed attack by means of an arm. Preparation to defend the state may not be understood only as service for gaining military preparation. The needs and means of the national defence may be very diverse, including not only the expansion of the armed forces and of the armament in order to strengthen the military power of the state, but also the information-technological, industrial and other means of similar nature which are not directly linked to the armed defence, which in certain aspect determine the strengthening of the military power of the state. This diversity also determines the diversity of the specific ways of the preparation of citizens for the state’s defence.

11. In this ruling of the Constitutional Court, it has been held, inter alia, that:

the constitutional order of the Republic of Lithuania is based on the priority of the rights and freedoms of individuals and citizens as the ultimate value;

the link between citizens and the state is mutual; the legal link with the state is necessary to citizens so that all their rights and freedoms might be guaranteed, which are enjoyed by citizens; citizenship determines the legal status of the person; the permanent legal link between the person and the state which is expressed by citizenship implies the duty of the state to protect its citizen within the country as well as outside its borders;

the right of citizens of the Republic of Lithuania consolidated in Paragraph 2 of Article 3 of the Constitution is linked to their right and duty to defend the State of Lithuania against a foreign armed attack which is consolidated in Paragraph 1 of Article 139 of the Constitution, and also with the constitutional duty of citizens of the Republic of Lithuania to perform military or alternative national defence service (Paragraph 2 of Article 139).

11.1. These doctrinal statements, which are related to the concepts of constitutional rights and freedoms, the link between the citizens and the state, the rights and duties of citizens and which are interpreted in the context of the constitutional justice case at issue, lead to the conclusion that for the citizens who perform their constitutional duties, inter alia, the duty to defend the state against a foreign armed attack, preconditions must be created to prepare properly for the performance of this duty. Otherwise, i.e. without having properly prepared the citizens to perform their constitutional duty to defend the state against a foreign armed attack, there would be, inter alia, not only a groundlessly big threat for the health and/or life of the citizens who, while being not prepared properly, were called up to defend their country against a foreign armed attack, but also such citizens would, in general, be unable to perform the obligation to defend their state which stems for them from the Constitution and, therefore, one would deny the duty which is consolidated in Paragraph 1 of Article 139 of the Constitution.

11.2. Thus, the discretion of the legislature to establish the legal regulation of organisation of the national defence system, inter alia, military service and state defence against a foreign armed attack which would in certain cases be implemented also by way of mobilisation which is provided for in the Constitution, must be implemented by taking account of the constitutional rights of a citizen, of the right of a citizen to perform his duty to defend the state (inter alia, obligatory military service in the event of mobilisation) while being properly prepared to do so.

11.3. Therefore, in the context of the constitutional justice case at issue, it needs to be noted that when the legislature reorganises the national defence system, inter alia, by switching to the armed forces organised on the grounds of professional and voluntary military service and providing for additional grounds for the postponement of the obligatory initial military service, the duty arises for the legislature from the Constitution, inter alia, from the constitutional principles of a state under the rule of law, the separation of powers, responsible governance, the protection of legitimate expectations, legal clarity and from other principles, to establish such legal regulation of the system of military service, which would establish efficient means (which are different from the obligatory initial military service, for example, obligatory military trainings, the participation in the activity of the corresponding organisation which is assigned to the national defence system, general events of the national defence system, etc.) of the preparation of citizens who have the duty to perform obligatory military service to defend the state—the means which would ensure proper preparation of citizens to perform the constitutional duty to defend the state against a foreign armed attack (inter alia, in the event of mobilisation).

IV

On the compliance of the provisions of the fifth, sixth and eighth paragraph of the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

1. The petitioner requests an investigation into the compliance of the provision of the fifth paragraph of the Resolution “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service”, the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision and the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

The petitioner impugns the constitutionality of the said provisions of the Resolution in the aspect that these provisions provide for the suspension of the obligatory initial military service and the performance of this service is actually already being suspended. However, in the opinion of the petitioner, the legislature did not provide for any efficient alternatives of the obligatory initial military service which would create the conditions for the Nation and citizens to implement the rights and duties provided for in Paragraph 2 of Article 3 and Paragraph 1 of Article 139 of the Constitution which are linked to the defence of the Homeland.

2. The impugned provisions of the Resolution consolidate the following statements:

it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service (fifth paragraph);

it is provided that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision (sixth paragraph);

it is proposed that the Government present the Seimas with the principal structure of the armed forces of the next year including the margin numbers of soldiers for approval established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service (eighth paragraph).

3. According to Paragraph 1 of Article 182 of the Statute of the Seimas (wording of 22 December 1998), resolutions are non-normative acts of the Seimas which are adopted in an attempt to approve in writing an opinion of the Seimas on any question which is important to the state.

4. In the Resolution which is impugned in this constitutional justice case at issue, one sets forth a certain position of the Seimas on the question of organisation of the armed forces and presents the Government the proposals regarding the creation of drafts of the corresponding legal regulation. Therefore, this Seimas Resolution is not a normative legal act directly raising legal consequences. This legal act was adopted by the Seimas, as the legislature, which is, according to Paragraph 3 of Article 139 of the Constitution, empowered to regulate by law the organisation of national defence. The said legal act provides for certain tendencies in the policy of organisation of military service and creates preconditions for establishing a certain legal regulation. It also needs to be noted that the constitutionality of this act is one of the preconditions of the constitutionality of the legal regulation prepared on the grounds of this Resolution.

Thus, the constitutionality of the impugned provisions of the Resolution which do not consolidate a legal regulation (legal norms) directly influencing the legal relations should be assessed in the aspect of the compliance of their content on the grounds of which the procedures of law-making should take place with the Constitution.

5. It has been mentioned that, under the Constitution, the legal regulation of national defence must be established taking account of the geopolitical situation and other factors which influence state security. The legislature must assess possible threats for the state security, the long-term political processes, the state’s participation in the organisations of mutual assistance of states, the international obligations of the state in the missions ensuring security and peacekeeping, etc. Only such legal regulation of the national defence system, inter alia, military service, would not be in conflict with the Constitution, which would be established while taking account of possible threats for the state’s security and which would ensure the defence of the state against a foreign armed attack, inter alia, which would ensure proper preparation of citizens for the defence of the state against a foreign armed attack.

Therefore, when adopting the legal acts, inter alia, the Resolution, which provide that the national defence system should be reorganised by switching to the armed forces organised on the grounds of the professional and voluntary military service, the legislature must assess the geopolitical situation of the state from the point of view of reality and the possibilities of state defence.

6. It has been mentioned that the Republic of Lithuania is a member of NATO—an organisation of collective defence. The principle of collective self-defence which may be considered as the basis of the whole North Atlantic Treaty, as well as that of NATO activity, is consolidated in Article 5 of the Treaty whereby the Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. If such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

The said guarantees of the article of the North Atlantic Treaty applied to the Republic of Lithuania ensure the assistance of other 27 members of NATO in the event of an armed attack. Having ratified the North Atlantic Treaty, the Republic of Lithuania not only received additional collective security guarantees, but also assumed obligations to assist the attacked parties in concert with other parties of this treaty.

7. Therefore, the Republic of Lithuania, while seeking to protect the values which are expressis verbis consolidated in the Constitution—independence of the state, territorial inviolability, constitutional order—must organise the national defence system, inter alia, military service, so that the state would have the units which would be well-prepared, regular, ready to expeditiously react to threats for state security and which would be formed on the grounds of military service. These may be armed forces formed on the grounds of voluntary military service and obligatory military service or professional military service (or on the grounds of a few said kinds of service) able to implement the functions of state defence. Under the Constitution, inter alia, Paragraph 2 of Article 139 thereof, a concrete model of the armed forces must be established by the legislature.

It also needs to be noted that the obligation for the Republic of Lithuania to organise the national defence system so that there would be regular, well-prepared units formed on the grounds of military service stems also from the international obligations assumed by Lithuania, inter alia, provided for in the North Atlantic Treaty ratified by the Republic of Lithuania, to participate in the collective defence operations, peacekeeping missions, etc. The international documents, inter alia, the North Atlantic Treaty, do not include the requirement for the states to choose a concrete model of the armed forces.

8. As mentioned before, while regulating the organisation of military service by law, one must ensure the institute of military obligation (obligatory military service) provided for in Paragraph 2 of Article 139 of the Constitution, whose forms are not expressis verbis determined in Paragraph 2 of Article 139 of the Constitution. In this context it needs to be noted that the impugned Resolution does not expressis verbis provide for abolition of the institute of the obligatory military service. In the impugned provision of the sixth paragraph of the Resolution, the legislature expressed the position regarding the reorganisation of the armed forces linked, inter alia, to the regular reconsideration of the need of performance of the obligatory initial military service (by approving the margin number of soldiers of such service by law every year) relating that also with the financial possibilities of the state.

9. It has also been mentioned that from the provisions of the Constitution consolidated, inter alia, in Paragraph 1 of Article 139 and Article 142 it also follows that when, under procedure established by law mobilisation is announced, inter alia, in the event of a foreign armed attack, a constitutional duty stems for the citizens to perform the obligatory military service. The legislature has the constitutional obligation to regulate by law the procedure of performance of the obligatory military service in the event of mobilisation which would ensure the defence of the state from an armed aggression. Taking account of that it also needs to be noted that the legislature must establish such legal regulation whereby legal preconditions would be created to properly prepare the citizens for mobilisation.

10. In this context, it needs to be noted that, as it has already been mentioned in this ruling of the Constitutional Court, for the citizens who implement their constitutional duties, inter alia, the duty to defend the state against a foreign armed attack, preconditions must be created to prepare properly for the performance of this duty. Otherwise, i.e. without having properly prepared the citizens to perform their constitutional duty to defend the state against a foreign armed attack, there would be, inter alia, not only a groundlessly big threat for the health and/or life of the citizens who, while being not prepared properly, were called up to defend their country against a foreign armed attack, but also such citizens would, in general, be unable to perform the obligation to defend their state which stems for them from the Constitution. Thus, the discretion of the legislature to establish the legal regulation of organisation of the national defence system, inter alia, military service and state defence against a foreign armed attack which would in certain cases be implemented also by way of mobilisation which is provided for in the Constitution, must be implemented by taking account of constitutional rights of a citizen, inter alia, by taking account of the right of a citizen to perform his duty to defend the state (inter alia, obligatory military service in the event of mobilisation) while being properly prepared to do so.

11. Therefore, as mentioned before, even if the legislature decides to suspend (postpone) the call-up to the obligatory initial military service, the duty arises for it from the Constitution, inter alia, from the constitutional principles of a state under the rule of law, the separation of powers, responsible governance, the protection of legitimate expectations, legal clarity and from other principles, to establish such legal regulation of the system of military service, which would establish efficient means (which are different from the obligatory initial military service, for example, obligatory military trainings, the participation in the activity of a corresponding organisation which is assigned to the national defence system, general events of the national defence system, etc.) of the preparation of citizens who have the duty to perform obligatory military service to defend the state—the means which would ensure proper preparation of citizens to perform the constitutional duty to defend the state against a foreign armed attack (inter alia, in the event of mobilisation).

12. The Resolution does not provide for any concrete means of the preparation of citizens to defend the state against a foreign armed attack. However, the Resolution does not deny the duty of citizens to defend the state from an armed attack, nor does it deny the obligation of the legislature to establish the legal regulation ensuring the preparation of citizens to defend the state.

It needs to be noted that taking account of the specificity of the Resolution, as not a normative, but a programme document, reflecting the legislature’s will on certain political tendencies, the legal regulation of the system of the means of preparation for the defence of the state is not a subject of the Resolution. The said questions of the legal regulation must be decided in normative legal acts adopted by the legislature.

13. On the other hand, as mentioned before, the Resolution was adopted by the Seimas, as the legislature, which is, according to Paragraph 3 of Article 139 of the Constitution, empowered to regulate by law the organisation of national defence. The said legal act provides for certain tendencies in the policy of organisation of military service and creates preconditions for corresponding legislative processes. It also needs to be noted that the constitutionality of this act is one of the preconditions of the constitutionality of the legal regulation prepared on the grounds of this Resolution.

14. In this context it needs to be noted that in the seventh paragraph of the Resolution it is emphasised that “civil and national education, the strengthening of the volunteer military service and the activity of the Lithuanian Riflemen’s Union is necessary in order to increase the defence power of the state.”

Therefore, the legislature, having expressed his position regarding the reorganisation of the military service in the course of switching to the armed forces organised on the grounds of professional and volunteer military service by the provisions impugned in this constitutional justice case, also emphasised the importance of the civil education necessary for strengthening the defence power of the state. Such a position of the legislature creates preconditions for deciding that it seeks to implement the reform of military service by deciding, in a complex manner, the questions linked to the organisation of the armed forces on the grounds of other kinds of service than the obligatory initial military service and to the preparation of citizens by means different than the obligatory initial military service.

15. Therefore, the fact that the impugned Resolution does not provide for means (which are different than the obligatory initial military service) of the preparation of citizens to defend the state against a foreign armed attack is not the grounds for holding that the impugned provisions consolidated in the Resolution, under which one provides to reorganise military service by organising the armed forces on the grounds of professional and volunteer military service, are in conflict with the provisions of Paragraph 2 of Article 3 and Paragraph 2 of Article 139 of the Constitution consolidating the rights and duties of citizens linked to the state defence as well as with Paragraph 2 of Article 5 of the Constitution and with the constitutional principle of a state under the rule of law. The legislature, while implementing the discretion to regulate the national defence system consolidated in Paragraph 3 of Article 139 of the Constitution and when establishing the guidelines for organisation of military service, did not deviate from the constitutional duty to provide for the system of legal means of the state defence taking account of the circumstances linked to the possible threats for state defence which stems from Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law when these provisions of the Constitution are construed together with Paragraphs 1 and 2 of Article 139 of the Constitution.

16. Taking account of the arguments set forth, the conclusion should be drawn that the provision of the fifth paragraph of the Resolution “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service”, the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, and the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

V

On the compliance of the provision of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Government Resolution (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008 with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

1. The petitioner requests an investigation into the compliance of the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

2. The petitioner impugns the constitutionality of the said provision of the Conception in the aspect that if the Government provides for the possibility for the citizens of the Republic of Lithuania not to perform the obligatory initial military service, they may be unprepared to implement the constitutional duty to defend the State of Lithuania against a foreign armed attack.

3. It has been mentioned that the Conception, the provision of Item 18 whereof is impugned in this constitutional justice case, discusses the general characteristics of the subject of regulation and aims of the Republic of Lithuania’s Law on Military Conscription with its new wording; it specifies the legal acts which regulate military conscription at present; it contains an analysis of insufficient efficiency of the legal norms which are proposed to be annulled or amended, it also contains a review of the law-making of foreign states, an analysis of the legal norms and principles of international law and European Union law; it discusses the main provisions of regulation of social relations, possible consequences of the anticipated legal regulation, it gives financial and economic reasoning, it provides for the structure of the law and legal acts which are expected to be amended or annulled.

4. The Conception was prepared while implementing the Seimas Resolution “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 and Item 880 of the Measures of the Implementation of the 2006–2008 Programme of the Government as approved by the Government Resolution (No. 1020) “On Approving the Measures of the Implementation of the 2006–2008 Programme of the Government of the Republic of Lithuania” of 17 October 2006 which provides for the measure—to prepare the Draft of the Republic of Lithuania’s Law on Amending the Law on Military Conscription by taking into account the changing needs of the system of administration of military conscription and creation of the system of recruitment and incentive.

5. The Conception is a non-normative legal act in which only certain guidelines of law-making linked to the regulation of military obligation are provided for. In the Conception it is defined what concrete provisions should be consolidated in the Law on Military Conscription with its new wording, what amendments and supplements of the legal acts are necessary seeking to implement the Law on Military Conscription with its new wording, it is specified which institution (the Ministry of National Defence) would be responsible for preparation of draft legal acts specified in the Conception (Item 42 of the Conception). Thus, by this act one consolidates the ground of establishment of amendments of the legal regulation linked to organisation of military service and obligations for law-making subjects. Therefore, the compliance of the Conception with the Constitution is important from the viewpoint of constitutionality of the legal acts which should be prepared and adopted when implementing this Conception.

Thus, the constitutionality of the impugned provision of the Conception which does not consolidate the legal regulation (legal norms) that directly influences the legal relations should be assessed in the aspect of the compliance of its content, on the grounds of which law-making procedures should take place, with the Constitution.

6. The amendments of the laws regulating the organisation of the system of military obligation that are proposed in the Conception are linked also to the provisions of the Seimas Resolution which are impugned in the case at issue (Item 3.1 of the Conception), inter alia, they are linked to the provisions, according to which it is provided that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision (sixth paragraph of the Resolution); it is proposed that the Government prepare the necessary draft amendments to the laws (eighth paragraph of the Resolution).

Therefore, the impugned Conception was prepared while implementing the proposals of the legislature linked, inter alia, to the reorganisation of the system of military service.

7. In the provision of Item 18 of the Conception, which is impugned by the petitioner, it is stipulated that the law should establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0.

8. Therefore, in the impugned provision of the Conception one presents the proposal to provide for a possibility in the law to postpone the obligatory initial military and alternative service of the national defence for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0. Such proposal which is presented in the Conception complies by its content with the provisions of the Seimas Resolution regarding the retaining of the obligatory military service only in case of mobilisation and reconsideration of the need of the obligatory initial military service every year by approving the margin numbers of soldiers by a Seimas decision which are impugned in this constitutional justice case. Thus, in the impugned provision of the Conception one proposed a model of law-making which essentially reiterated the position of the legislature set forth in the Seimas Resolution.

9. It needs to be noted that, as mentioned before, the Conception was prepared while implementing the proposals of the legislature which has the discretion to establish the legal regulation of the national defence system, inter alia, the organisation of military service, for the Government to prepare the necessary draft laws which were set forth in the adopted Resolution. In addition, the Conception does not consolidate a legal regulation (legal norms) which directly influence the legal relations, it is a non-normative legal act which provides for only certain guidelines of law-making linked to the regulation of military obligation. Therefore, while approving the Conception whose provision is impugned in this constitutional justice case, the Government did not exceed the limits of its competence and did not violate the constitutional principles of the limitation on the powers of the authority, the separation of powers and a state under the rule of law.

10. It has been held in this ruling of the Constitutional Court that the impugned provisions of the Resolution, in the course of the implementation of which the Conception was prepared, are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

11. Therefore, there are no sufficient grounds for stating that the impugned provision of the Conception denies the duty of citizens to defend the state which stems from the Constitution, inter alia, Paragraph 2 of Article 3 and Paragraphs 1 and 2 of Article 139 thereof, and violates Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law.

12. Taking account of the arguments set forth, the conclusion should be drawn that the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception is not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution, and with the constitutional principle of a state under the rule of law.

VI

On the compliance of Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service and Item 2 of Paragraph 2 of Article 3 of the Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

1. The petitioner requests an investigation into the compliance of Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 and Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014, under which the established margin number of soldiers of the obligatory initial military service correspondingly in 2013 and 2014 shall be 0, with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

According to the petitioner, under the impugned provisions of the said laws, in 2013 and 2014, there will be no initial military obligation, therefore, the citizens will not be prepared for the implementation of the rights and duties linked to the defence of the Homeland which are established in Paragraph 2 of Article 3 and Paragraph 1 of Article 139 of the Constitution.

2. The impugned Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 provides that the margin number of soldiers of the obligatory initial military service in 2013 shall be 0. The impugned Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014 provides that the margin number of soldiers of the obligatory initial military service in 2014 shall be 0.

3. As mentioned before, according to the Resolution and the Conception, it is provided that the obligatory military service should be retained only in case of mobilisation, that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, and that the obligatory initial military and alternative service of the national defence should be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0. As mentioned before, under the impugned provisions of the Law on the Planned Principal Structure of the Armed Forces in 2013 and the Law on the Planned Principal Structure of the Armed Forces in 2014, the margin number of soldiers of the obligatory initial military service correspondingly in 2013 and 2014 shall be 0. Thus, these laws provide for the postponement of the call-up to the obligatory initial military service in 2013 and 2014, however, the institute of the obligatory initial military service is not abolished.

4. In this ruling of the Constitutional Court, the following has been mentioned:

under the Constitution, the legal regulation of national defence must be established by taking account of the geopolitical situation and other factors which influence state security. The legislature must assess possible threats for state security, the long-term political processes, the state’s participation in the organisations of mutual assistance of states, the international obligations of the state in the missions ensuring security and peacekeeping, etc.;

only such legal regulation of the national defence system, inter alia, military service, would not be in conflict with the Constitution, which would be established by taking account of possible threats for the state’s security and which would ensure the defence of the state against a foreign armed attack, inter alia, which would ensure proper preparation of citizens for the defence of the state against a foreign armed attack;

the Republic of Lithuania, both seeking to protect the values which are expressis verbis consolidated in the Constitution—independence of the state, territorial inviolability, constitutional order—and implementing the constitutionally grounded obligations which stem from the international treaties, must organise the national defence system, inter alia, military service, so that the state would have the units which would be well-prepared, regular, ready to expeditiously react to threats for state security and which would be able to participate in the collective defence operations that would be formed on the grounds of military service;

while construing the formula “citizens of the Republic of Lithuania must perform military <...> service” consolidated in Paragraph 2 of Article 139 of the Constitution, one must heed the constitutional meaning and purpose of the institute of military service; Paragraph 2 of Article 139 of the Constitution provides for the duty to perform military or alternative national defence service, however, the Constitution does not expressis verbis establish all possible kinds of military service, forms of the obligatory military service and requirements for the subjects of military service; the Constitution does not expressis verbis consolidate the duty to perform the obligatory initial military service, either;

the legislature, while regulating the relations linked to the organisation of the national defence, inter alia, the armed forces, has a rather broad discretion; while heeding the norms and principles of the Constitution, it may choose various models of the armed forces and forms of military service;

the obligatory military service is necessary so that the citizens would be prepared to defend the state, however, it does not mean that the preparation may be implemented only in one way—by performing the obligatory initial military service and that each citizen has the duty to perform namely the obligatory initial military service; the constitutional duty of the citizens to perform military service and to prepare for the defence of the state against a foreign armed attack may be implemented in various forms the variety of which is implied, inter alia, by the variety of means of the state’s defence;

the Constitution does not prohibit establishing such legal regulation applying which the Lithuanian armed forces whose purpose is to protect and defend the state and its citizens from an armed attack would be organised only on the grounds of professional and voluntary military service; Article 139 of the Constitution may not be interpreted as meaning that the armed forces must be organised only on the grounds of obligatory military service;

while adopting the legal acts in which he provides to reorganise the national defence system, inter alia, by switching to the armed forces organised on the grounds of professional and volunteer military service and providing for additional grounds for the postponement of the obligatory initial military service, the legislature must establish such legal regulation so that efficient means (which are different from the obligatory initial military service) of the preparation of citizens who have the duty to perform obligatory military service to defend the state would be provided for in the legal system.

5. The impugned provisions of laws do not deny the constitutional institute of the obligatory military service—it remains in case of mobilisation, as well as they do not deny the constitutional duty of citizens to defend the State of Lithuania against a foreign armed attack. In addition, the impugned provisions of laws, under which one does not provide for the call-up of soldiers of the obligatory initial military service to the Lithuanian armed forces for the years 2013 and 2014, virtually do not deny the institute of the obligatory initial military service as well.

6. It also needs to be noted that the purpose of the impugned laws is to establish the principal structure of the armed forces only for the corresponding period of time—for the years 2013 and 2014. By these laws, one does not regulate the relations linked to preparation of citizens for the obligatory military service, inter alia, in case of mobilisation.

7. Therefore, the mere fact that the impugned laws do not provide for concrete different means (which are different from the obligatory initial military service) of the preparation of citizens to defend the state against a foreign armed attack is not the grounds for holding that the impugned provisions are in conflict with the provisions of Paragraph 2 of Article 3 and Paragraphs 1 and 2 of Article 139 of the Constitution which consolidate the rights and duties of citizens linked to the defence of the state, as well as with Paragraph 2 of Article 5 of the Constitution and with the constitutional principle of a state under the rule of law.

8. Taking account of the arguments set forth, the conclusion should be drawn that Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2013 and Item 2 of Paragraph 2 of Article 3 of the Law on the Planned Principal Structure of the Armed Forces in 2014 are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Paragraphs 1 and 2 of Article 139 of the Constitution and with the constitutional principle of a state under the rule of law.

VII

1. In this ruling of the Constitutional Court, inter alia, the following was held:

from the Constitution, inter alia, the provisions of Articles 3 and 139 thereof, a duty stems for the legislature to establish such legal regulation that the Republic of Lithuania would have a regular, well-organised armed forces able to implement the constitutional functions, inter alia, the obligation to defend the state against a foreign armed attack;

the legislature, having consolidated in the law such model of organisation of the armed forces, under which the armed forces are organised on the grounds of professional and voluntary military service, must heed the provisions of the Constitution, inter alia, the imperative consolidated in Paragraph 1 of Article 139 of the Constitution that the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania; the formation of the armed forces organised on the grounds of professional and voluntary military service does not deny the constitutional obligation of citizens to defend the State of Lithuania against a foreign armed attack, while at the same time the legislature is not exempted from the duty to establish such legal regulation that legal preconditions would be created to prepare the citizens properly for the performance of this constitutional obligation;

the notion of the preparation of citizens to defend the state is rather broad, including not only the preparation of citizens to defend the state against a foreign armed attack by means of arms; the needs and means of the national defence may be very varied ones; this variety also determines the diversity of the specific ways of the preparation of citizens for the state’s defence;

for the citizens who perform their constitutional duties, inter alia, the duty to defend the state against a foreign armed attack, preconditions must be created to prepare properly for the performance of this duty; otherwise, i.e. without having properly prepared the citizens to perform their constitutional duty to defend the state against a foreign armed attack, there would be, inter alia, not only a groundlessly big threat for the health and/or life of the citizens who, while being not prepared properly, were called up to defend their country against a foreign armed attack, but also such citizens would, in general, be unable to perform the obligation to defend their state which stems for them from the Constitution and, therefore, one would deny the duty which is consolidated in Paragraph 1 of Article 139 of the Constitution;

when the legislature reorganises the national defence system, inter alia, by switching to the armed forces organised on the grounds of professional and voluntary military service and providing for additional grounds for the postponement of the obligatory initial military service, a duty stems to him from the Constitution, inter alia, Articles 3 and 139 thereof, to consolidate such legal regulation of the system of military service, which would establish efficient means (which are different from the obligatory initial military service, for example, obligatory military trainings, the participation in the activity of a corresponding organisation which is assigned to the national defence system, general events of the national defence system, etc.) of the preparation of citizens who have the duty to perform obligatory military service to defend the state—the means which would ensure proper preparation of citizens to perform the constitutional duty to defend the state against a foreign armed attack (inter alia, in the event of mobilisation).

2. Taking account of the said doctrinal provisions, it needs to be held that recognition of the legal acts impugned in this constitutional justice case as not in conflict with the Constitution does not mean that the legislature, when it regulates the reorganisation of organisation of the national defence system, inter alia, military service, inter alia, switching to the armed forces organised on the grounds of professional and volunteer military service, does not have the constitutional duty to establish such legal regulation that when applying it one would provide for efficient means (which are different from the obligatory initial military service) of the preparation of citizens who have the duty to perform obligatory military service to defend the state. From the Constitution, inter alia, Paragraph 2 of Article 3 and Article 139 thereof, the duty arises for the legislature, when reorganising the system of military service and the structure of the armed forces, to establish such legal regulation which would ensure proper organisation of the armed forces, continuous implementation of the functions of the armed forces linked to the ensuring of the state defence and proper preparation of citizens to defend the state against a foreign armed attack, inter alia, by efficient means (which are different from the obligatory initial military service) of preparation by providing, in laws, concrete ways of the preparation of citizens, the procedure of their implementation, etc.

3. In this context, it also needs to be noted that because of the fact that the laws impugned in this constitutional justice case, inter alia, establishing the principal structure of the armed forces in 2013 and 2014, postpone the call-up to the obligatory initial military service in 2013 and 2014, and should such a legal regulation remain and undergo no amendments, the legislature must, namely until that time, consolidate in laws the concrete ways (which are different from the obligatory initial military service) of the preparation of citizens to defend the state against a foreign armed attack, the procedure of their implementation, etc.

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:

1. To recognise that the provision “it is expedient to switch to the Lithuanian armed forces organised on the grounds of professional and volunteer military service” of the fifth paragraph of the Resolution of the Seimas of the Republic of Lithuania “On the Principles of Organisation of the Lithuanian Armed Forces” of 13 March 2008 (Official Gazette Valstybės žinios, 2008, No. 47-1753), the provision of the sixth paragraph thereof to the extent that it provides that the obligatory military service should be retained only in case of mobilisation and that the need of the obligatory initial military service should be reconsidered every year by approving the margin numbers of soldiers by a Seimas decision, the provision of the eighth paragraph thereof to the extent that it proposes that the Government present the Seimas the margin numbers of soldiers for approval, established after having taken account of the needs of switching to the armed forces organised on the grounds of professional and volunteer military service, are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that the provision “shall establish the additional new grounds for the postponement of the obligatory initial military service which will provide that the obligatory initial military and alternative service of the national defence may be postponed for all the conscripts if the law which regulates the principal structure of the armed forces of the corresponding year provides that the margin number of soldiers of the obligatory initial military service is 0” of Item 18 of the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording as approved by the Resolution of the Government of the Republic of Lithuania (No. 620) “On Approving the Conception of the Republic of Lithuania’s Law on Military Conscription with Its New Wording” of 18 June 2008 (Official Gazette Valstybės žinios, 2008, No. 75-2942) is not in conflict with the Constitution of the Republic of Lithuania.

3. To recognise that Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2008, Establishing the Planned Principal Structure of the Armed Forces in 2013 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (Official Gazette Valstybės žinios, 2008, No. 87-3460) is not in conflict with the Constitution of the Republic of Lithuania.

4. To recognise that Item 2 of Paragraph 2 of Article 3 of the Republic of Lithuania’s Law on Establishing the Principal Structure of the Armed Forces in 2009, Establishing the Planned Principal Structure of the Armed Forces in 2014 and Approving the Margin Number of Statutory Servants in the Civil National Defence Service (Official Gazette Valstybės žinios, 2008, No. 87-3461) is not in conflict with the Constitution of the Republic of Lithuania.

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