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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE COURT OF APPEAL OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 225) “ON RELEASING A JUDGE OF A LOCAL COURT FROM OFFICE” OF 3 MARCH 2005 IS NOT IN CONFLICT WITH PARAGRAPH 1 OF ARTICLE 44, PARAGRAPH 1 OF ARTICLE 51, AND ITEM 4 OF ARTICLE 52 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS (WORDING OF 24 JANUARY 2002), AS WELL AS WITH PARAGRAPH 1 OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

20 November 2009
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-51/2009) of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into “whether the Decree of the President of the Republic of Lithuania (No. 225) ‘On Releasing a Judge of a Local Court from Office’ of 3 March 2005 pursuant to Item 2 of Article 115 of the Constitution of the Republic of Lithuania, upon the expiration of the term of powers (Official Gazette Valstybės žinios, 2005, No. 31-984), according to the content is not in conflict with the provision of Paragraph 1 of Article 44 of the Republic of Lithuania’s Law on Courts whereby a judge enjoys the rights and freedoms of a citizen of the Republic of Lithuania that are entrenched in the Constitution and laws of the Republic of Lithuania, with Paragraph 1 of Article 55 of the same law to the extent that a citizen of the Republic of Lithuania, who has impeccable reputation, may be appointed as a judge of a local court, with Item 4 of Article 52 of the same law, as well as with Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which consolidates the guarantees of the equality of the procedure, impartiality and independence”.

The Constitutional Court

has established:

1. The Court of Appeal of Lithuania, the petitioner, considered a civil case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” (hereinafter also referred to as the 3 March 2005 decree (No. 225) of the President of the Republic) is not in conflict with Paragraph 1 of Article 44 of the Law on Courts, with Paragraph 1 of Article 55 of the same law to the extent that a citizen of the Republic of Lithuania, who has impeccable reputation, may be appointed as a judge of a local court, with Item 4 of Article 52 of the same law, as well as with Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention).

2. In the opinion of the Court of Appeal of Lithuania, the petitioner, the procedure of investigating the appropriateness of S. Petraškaitė, a judge at the Ukmergė District Local Court to the job of a judge could be illegal and the assessment of activity of this judge could be groundless. On the grounds of these preconditions the petitioner has doubts whether an exception was not made in relation to the judge S. Petraškaitė when the impugned decree of the President of the Republic was adopted, whether the principle of the equality of all persons before the law was not violated, and whether the President of the Republic had the right to release S. Petraškaitė from the office of a judge pursuant to Item 2 of Article 115 of the Constitution (upon the expiry of the term of powers).

3. In its petition the petitioner notes that, by its ruling of 20 December 2007, the Constitutional Court recognised the 3 March 2005 decree (No. 225) of the President of the Republic, by which the judge S. Petraškaitė had been released from office upon the expiration of the term of powers, to be not in conflict with the Constitution and Paragraph 1 of Article 45 of the Law on Courts (wording of 24 January 2002), also that the Constitutional Court did not investigate the compliance of the aforementioned decree of the President of the Republic with Item 4 of Article 52 of the Law on Courts and dismissed this part of the case.

The Constitutional Court

holds that:

1. The Court of Appeal of Lithuania, the petitioner, requests an investigation into whether Decree of the President of the Republic No. 225 is not in conflict with Paragraph 1 of Article 44 of the Law on Courts, with Paragraph 1 of Article 55 of the same law to the extent that a citizen of the Republic of Lithuania, who has impeccable reputation, may be appointed as a judge of a local court, with Item 4 of Article 52 of the same law, as well as with Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

2. It should be mentioned that the first time when the Court of Appeal of Lithuania, the petitioner, applied to the Constitutional Court in relation to the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the Constitution, was on 29 March 2006, after suspending the investigation of the civil case according to the appeal of S. Petraškaitė, the claimant, concerning to the decision of the Panevėžys Regional Court of 18 November 2005. Under this decision the Panevėžys Regional Court rejected the appeal of S. Petraškaitė, because it, inter alia, made the conclusion that “in relation to Sabina Petraškaitė, the claimant, one followed the procedure which is established in the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Courts as regards the assessment of suitability of the claimant to be appointed as a judge until 65 years of age, and the advice of the Council of Courts to release the claimant from the office of a judge of Ukmergė District Local Court upon the expiry of the term of powers is a reasoned one”.

On 20 December 2007, the Constitutional Court handed down the Ruling “On the Compliance of the Decree of the President of the Republic of Lithuania (No. 225) ‘On Releasing a Judge of a Local Court from Office’ of 3 March 2005 with the Constitution of the Republic of Lithuania and Paragraph 1 of Article 45 (Wording of 24 January 2002) of the Republic of Lithuania’s Law on Courts, and on the Dismissal of the Part of the Case Subsequent to the Petition of the Court of Appeal of Lithuania, the Petitioner, Requesting an Investigation into the Compliance of the Decree of the President of the Republic of Lithuania (No. 225) ‘On Releasing a Judge of a Local Court From Office’ of 3 March 2005 with Item 4 of Article 52 (Wording of 24 January 2002) of the Republic of Lithuania’s Law on Courts”, in which it was recognised that the 3 March 2005 decree (No. 225) of the President of the Republic was not in conflict with the Constitution and Paragraph 1 of Article 45 of the Law on Courts (wording of 24 January 2002). This ruling of the Constitutional Court was published in the official gazette “Valstybės žinios” on 22 December 2007.

Thus, the petitioner requests an investigation into whether the Decree of the President of the Republic, the compliance of which with the Constitution and Paragraph 1 of Article 45 of the Law on Courts (wording of 24 January 2002) has been investigated and the ruling that was handed down by the Constitutional Court on 20 December 2007 on this issue is still effective, is not in conflict with the provisions of the Law on Courts and the Convention.

3. It should be mentioned that after the entry into effect of the Constitutional Court’s ruling of 20 December 2007, the Court of Appeal of Lithuania renewed the investigation of the case concerning the release of S. Petraškaitė, a judge of a local court, from the office of a judge, and, on 4 September 2008, adopted a decision whereby: it revoked the ruling of the Panevėžys Regional Court of 18 November 2005; recognised the 18 February 2005 resolution (No. 13P-321) of the Council of Courts on advice to the President of the Republic to release S. Petraškaitė from the office of a judge of the Ukmergė District Local Court upon the expiration of the term of powers as no longer effective; recognised that the release of S. Petraškaitė from the office of a judge of the Ukmergė District Local Court by the decree of the President of the Republic of 3 March 2005, pursuant to the advice of the Council of Courts due to the expiration of her term of powers, was groundless and illegal; adjudicated that S. Petraškaitė should be paid from the state budget an average remuneration for work amounting to LTL 197,098 and the recovery of non-material damages amounting to LTL 10,000.

By its ruling of 10 February 2009 (in civil case No. 3K-3-43/2009), the Supreme Court of Lithuania overruled the decision of the College of Judges of the Civil Case Division of the Court of Appeal of Lithuania of 4 September 2008 and referred the case back to the Court of Appeal of Lithuania for a new investigation under the appellate procedure.

On 12 October 2009, the Court of Appeal of Lithuania applied to the Constitutional Court with the petition requesting an investigation into the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the respective provisions of the Law on Courts and the Convention rather than the Constitution.

4. The Constitutional Court has held more than once that the Constitution is an integral and directly applicable legal act (Paragraph 1 of Article 6 of the Constitution). It should be noted that the Constitutional Court, while investigating, subsequent to the petition of the petitioner whether the impugned legal act (part thereof) is not in conflict with the articles (parts thereof) of the Constitution pointed out by the petitioner, alongside also investigates whether the said legal act (part thereof) is not in conflict with the Constitution, an indivisible and harmonious system (the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003).

The principle of the supremacy of the Constitution means that the Constitution rests in the exceptional, highest place in the hierarchy of legal acts; no legal act may be in conflict with the Constitution; no one is permitted to violate the Constitution; the constitutional order must be protected; the Constitution itself consolidates the mechanism permitting determining whether legal acts (parts thereof) are not in conflict with the Constitution; in this respect, the principle of the supremacy of the Constitution, which is established in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle upon which the entire Lithuanian legal system and the Constitution itself are based; violation of the principle of the supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well (the Constitutional Court’s rulings of 24 December 2002, 29 October 2003, 5 March 2004, and 20 March 2007).

When deciding, within its competence, as regards the compliance of the legal acts (parts thereof) of lower legal force with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, as well as when implementing its other constitutional powers, the Constitutional Court—an autonomous and independent court—implements constitutional justice and guarantees both the supremacy of the Constitution in the legal system and constitutional legitimacy (the Constitutional Court’s rulings of 12 July 2001, 29 November 2001, 13 December 2004, 28 March 2006, 6 June 2006, and 8 August 2006). The Constitutional Court is the institutional guarantee of the principles of the supremacy of the Constitution and a state under the rule of law entrenched in the Constitution (the Constitutional Court’s ruling of 6 June 2006). Constitutional Court ensures, within its competence, the hierarchy of legal acts consolidated in the Constitution, the compliance of all legal acts having the legal force of a constitutional law with the Constitution, the compliance of all legal acts having the legal force of a law with the Constitution and legal acts having the legal force of constitutional laws, as well as the compliance of all substatutory legal acts of the Seimas, acts of the President of the Republic and the Government with the Constitution, legal acts having the legal force of constitutional laws, and with legal acts having the legal force of a law (the Constitutional Court’s ruling of 8 August 2006).

In this context it needs to be mentioned that, as already held by the Constitutional Court more than once, the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on the issues within its competence according to the Constitution shall be final and not subject to appeal, also means that the Constitutional Court’s rulings, conclusions and decisions by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

5. In this context, it should be mentioned that, as already held above, in its ruling of 20 December 2007, the Constitutional Court recognised that the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” was not in conflict with the Constitution and Paragraph 1 of Article 45 (wording of 24 January 2002) of the Law on Courts. It has also been mentioned that this ruling of the Constitutional Court is still effective. Despite of the fact that the petitioner requests an investigation into whether the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” is not in conflict with the Convention and the provisions of the Law on Courts, in relation to which the Constitutional Court’s ruling of 20 December 2007 did not expressis verbis state the non-conflict of this decree of the President of the Republic, however, it is obvious from the arguments of the petitioner and the material of the case that the aforementioned decree of the President of the Republic is impugned in the same aspect which was investigated in the previous constitutional justice case, in which the Constitutional Court’s ruling of 20 December 2007 was handed down, i.e. in the aspect as to whether the procedures of releasing S. Petraškaitė, the judge of the Ukmergė District Local Court, from office were not infringed by adopting the aforementioned Decree of the President of the Republic of 3 March 2005.

In this context, it should be held that, having investigated the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the Constitution—an integral and harmonious system—as well as with the provisions of the Law on Courts which are not in conflict with the Constitution and on the basis of which and while implementing which the aforementioned decree of the President of the Republic has been adopted, and, while the Constitutional Court’s ruling of 20 December 2007 is effective, the compliance of this decree with the Constitution and laws that are not in conflict with the latter may not be subject to question. Otherwise, one would deviate from the imperatives that stem from Paragraph 1 of Article 7 and Paragraph 2 of Article 107 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, one would deny the principle of supremacy of the Constitution, the notion of hierarchy of legal acts, which is entrenched in the Constitution, and one would distort the notion that the Constitutional Court’s rulings on the issues that within its jurisdiction according to the Constitution are final and not subject to appeal, as well as the very essence of the constitutional justice.

In this context it should be noted that, subsequent to Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force.

6. Article 62 of the Law on the Constitutional Court prescribes that a ruling of the Constitutional Court may be reviewed on its own initiative if new, essential circumstances turn up which were unknown to the Constitutional Court at the time when the ruling was passed.

In this context, it should be mentioned that this provision does not mean that various subjects of law, inter alia, those which, under the Constitution and the Law on the Constitutional Court, may apply to the Constitutional Court with a petition or inquiry on the questions within the jurisdiction of the Constitutional Court, may not raise the question of reviewing a final act of the Constitutional Court before the Constitutional Court; however, under the Constitution and the Law on the Constitutional Court, while deciding whether to do so, the Constitutional Court has wide discretion. Under the Constitution, the Constitutional Court has the powers to review its rulings, conclusions, and decisions, when they were adopted while the Constitutional Court did not know about such essential circumstances, which, if they had been known, would have been able to determine a different content of the adopted rulings, conclusions and decisions. The opposite construction would mean that the Constitutional Court is not bound by Paragraph 2 of Article 107 of the Constitution, under which, as mentioned before, final acts of the Constitutional Court are binding on the Constitutional Court itself and they restrict the Constitutional Court in the aspect that it may not change or review them if there are no constitutional grounds for that. Such construction would not correspond the Constitution also because of the fact that it would create preconditions for denying the continuity of the constitutional jurisprudence and violating the principle of the supremacy of the Constitution, the constitutional principle of a state under the rule of law and other provisions of the Constitution (the Constitutional Court’s ruling of 28 March 2006).

7. Having taken into account the advice of the Council of Courts, the President of the Republic, by the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005, released S. Petraškaitė, a judge of the Ukmergė District Local Court, from office upon the expiration of the term of powers; it is held in the Constitutional Court’s ruling of 20 December 2007, inter alia, that S. Petraškaitė was released from office by the decree of the President of the Republic upon receipt of the advice of the Council of Courts; the advice of the Council of Courts, which was taken into consideration when adopting the decree of the President of the Republic, is still effective.

It should be held that the petition of the petitioner contains no new, essential circumstances, which were not known to the Constitutional Court at the moment of adopting the ruling of 20 December 2007 and which could be recognised to be the grounds for deciding on the reviewing the Constitutional Court’s ruling under Article 62 of the Law on the Constitutional Court.

8. In this context, attention should also be drawn to the doctrinal provisions on the appointment and release of judges as formulated in the legal acts of the Constitutional Court.

Subsequent to the doctrine which was formulated in the Constitutional Court’s ruling of 20 December 2007, upon the expiration of the term of powers of the judge of a local court the President of the Republic may, but not must, appoint the judge of a district court until he reaches the age of 65 years, even if the Council of Courts advises to appoint the judge to continue in office until he reaches the age of 65 years. In the aforementioned case, the appointment or release of a judge of a local court until he reaches the age of 65 years, upon expiry of the period of five years of the term of powers, is subject to the discretion of the President of the Republic, while implementing which the President of the Republic follows not only the intention of the person continue as in the office of a judge, but also the public interest that only the persons who have proper vocational and personal characteristics are appointed as judges. If the President of the Republic applies to the special institution of judges provided for by law, as indicated in Paragraph 5 of Article 112 of the Constitution, with the request for an advice on appointment of the judge, and the latter advises to the President of the Republic not to appoint this person as a judge, subsequent to the Constitution the President of the Republic may not appoint this person as a judge.

In this context it should be noted that upon the expiration of the five-year period of the term of powers of S. Petraškaitė, a judge of the Ukmergė District Local Court, and upon the advice of the Council of Courts to release her from office, the President of the Republic was not allowed to appoint S. Petraškaitė to continue in the office of a judge until she reaches the age of 65 years and had to release her from office due to the expiration of the term of powers.

9. It has been held in this decision of the Constitutional Court that:

the Constitutional Court’s ruling of 20 December 2007, by which the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 was ruled to be not in conflict with the Constitution and Paragraph 1 of Article 45 (wording of 24 January 2002) of the Law on Courts, is still effective.

the petition (No. 1B-51/2009) of the Court of Appeal of Lithuania, the petitioner, contains no new, essential circumstances, which were not known to the Constitutional Court at the moment of handing down the ruling of 20 December 2007 and which could be recognised to be the grounds for deciding to review the Constitutional Court’s ruling subsequent to Article 62 of the Law on the Constitutional Court.

According to Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the fact that the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force, constitutes the grounds for the refusal to investigate this petition.

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

decision:

To refuse to investigate the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the Decree of the President of the Republic of Lithuania (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 is not in conflict with Paragraph 1 of Article 44 of the Republic of Lithuania of the Law on Courts, with Paragraph 1 of Article 55 of the same law to the extent that a citizen of the Republic of Lithuania, who has impeccable reputation, may be appointed as a judge of a local court, with Item 4 of Article 52 of the same law, as well as with Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

This decision of the Constitutional Court is final and not subject to appeal.

The decision is pronounced in the name of Republic of Lithuania.

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis