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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE 4 AUGUST 2005 PETITION OF THE KLAIPĖDA REGIONAL COURT REQUESTING AN INVESTIGATION INTO WHETHER ITEM 89 OF THE INSTRUCTIONS FOR EXECUTION OF DECISIONS AS CONFIRMED BY THE ORDER (NO. 432) “ON CONFIRMING THE INSTRUCTIONS FOR EXECUTION OF DECISIONS” OF 31 DECEMBER 2002 ISSUED BY THE MINISTER OF JUSTICE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

20 September 2005

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at the procedural sitting of the Constitutional Court, has considered the 4 August 2005 petition of the Klaipėda Regional Court requesting an investigation into whether Item 89 of the Instructions for Execution of Decisions as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 48 the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Klaipėda Regional Court, the petitioner, considered a civil case. By its ruling of 4 August 2005, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 89 of the Instructions for Execution of Decisions (Official Gazette Valstybės žinios, 2003, No. 3-82; hereinafter also referred to as the Instructions) as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 48 the Constitution.

II

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

1. Paragraph 1 of Article 48 of the Constitution establishes, inter alia, that each human being shall have the right to just pay for work. According to the petitioner, constitutional norms are characteristic of the fact that they establish not only the right but also a duty to act in a corresponding manner; thus, one must remunerate for work according to labour expenditures, spent time, qualification of the employee and other criteria. The petitioner does not have doubts that a bailiff has the right to receive remuneration if he performs concrete executing actions; the petitioner doubts the compliance of Item 89 of the Instructions with Paragraph 1 of Article 48 of the Constitution due to the fact that this item establishes a duty of the debtor to pay remuneration to the bailiff even in cases where the debtor himself pays the debt, i.e. when the bailiff does not perform coercive execution actions prior to paying the debt. The petitioner thinks that the said duty of the debtor is established without reasonable grounds.

2. The petitioner draws one’s attention to the fact that under Paragraph 1 of Article 583 of the Code of Civil Procedure of the Republic of Lithuania, the Instructions for Execution of Decisions are confirmed by the Government or an institution authorised by it; in the opinion of the petitioner, this fact proves that the Instructions “meet the requirements raised to an act of the Government of the Republic of Lithuania”, therefore, the issue of its compliance with the Constitution can be raised and decided at the Constitutional Court.

The Constitutional Court

holds that:

I

1. Under Paragraph 1 of Article 583 of the Code of Civil Procedure of the Republic of Lithuania, the Instructions for Execution of Decisions are confirmed by the Government or an institution authorised by it.

2. Paragraph 4 of Article 21 of the Republic of Lithuania’s Law on Bailiffs provides that the procedure and amount of remuneration to a bailiff for enforcement of execution documents defined by law, for making material ascertainment by a court order, delivering and handing in documents by a court order to natural and legal persons in the Republic of Lithuania shall be determined by the Government of the Republic of Lithuania or an institution authorised by it.

3. On 4 June 2002, the Government adopted the Resolution (No. 816) “On Granting the Powers in Relation with the Implementation of the Republic of Lithuania’s Law on Confirmation, Entry into Effect and Implementation of the Code of Civil Procedure” by Item 1 of which it resolved:

To grant the powers to the Ministry of Justice to draft and confirm, with coordination of the Ministry of Finance: <…>

1.3. the instructions for execution of decisions.”

4. On 31 December 2002, the Minister of Justice confirmed the Instructions for Execution of Decisions by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions”.

It was established in Item 89 of the Instructions that “after the debtor carries out the decision after the expiration of the term established in the inducement paper, and if one did not have to send him the inducement paper, after the execution document was accepted for execution, all execution expenses shall be exacted from the debtor.”

5. On 14 February 2003, the Minister of Justice issued the Order (No. 47) “On Amending the Order (No. 432) ‘On Confirming the Instructions for Execution of Decisions’ of 31 December 2002 issued by the Minister of Justice and Confirming the Form of an Order Regarding Sequestration and Transfer of Funds to the Deposit Account of the Bailiff” (Official Gazette Valstybės žinios, 2003, No. 19-833) whereby the Instructions for Execution of Decisions as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice were partly amended. Item 89 (wording of 31 December 2002) of the Instructions was not amended.

On 30 September 2003, the Minister of Justice issued the Order (No. 242) “On Amending the Order (No. 432) ‘On Confirming the Instructions for Execution of Decisions’ of 31 December 2002 issued by the Minister of Justice and Confirming the Forms of Orders on Execution of Execution Documents” (Official Gazette Valstybės žinios, 2003, No. 94-4259) whereby the Instructions for Execution of Decisions (with subsequent amendments) as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice were partly amended. Item 89 (wording of 31 December 2002) of the Instructions was not amended.

On 10 February 2004, the Minister of Justice issued the Order (No. 1R-37) “On Amending the Order (No. 432) ‘On Confirming the Instructions for Execution of Decisions’ of 31 December 2002 issued by the Minister of Justice” (Official Gazette Valstybės žinios, 2004, No. 26-833) whereby the Instructions for Execution of Decisions (with subsequent amendments) as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice were partly amended. Item 89 (wording of 31 December 2002) of the Instructions was amended and set forth as follows: “After the debtor carries out the decision after the expiration of the term established in the inducement (proposal) paper, and if one did not have to send him the inducement (proposal) paper, after the execution document was accepted for execution, all execution expenses shall be exacted from the debtor.” Having compared Item 89 (wording of 10 February 2004) of the Instructions with the former wording (31 December 2002) of the same item, it is clear that the legal regulation established therein virtually remained the same, only twice after the word “inducement” the word “proposal” was entered in brackets.

On 24 January 2005, the Minister of Justice issued the Order (No. 242) “On Amending the Order (No. 432) ‘On Confirming the Instructions for Execution of Decisions’ of 31 December 2002 issued by the Minister of Justice(Official Gazette Valstybės žinios, 2005, No. 12-402) whereby the Instructions for Execution of Decisions (with subsequent amendments) were partly amended. Item 89 (wording of 10 February 2004) of the Instructions was not amended.

II

1. Item 1 of the Instructions provides that it establishes the procedure of application of the norms of Part VI of the Code of Civil Procedure in the course of executing execution documents provided for by law.

The provisions of the Instructions are grouped into these chapters: I. General Provisions; II. Presentation of the Execution Document and Its Acceptance for Execution. Initial Actions of Execution; III. Sequestration of Property; IV. Procedure for Realisation of Property; V. Exaction from Remuneration for Work of the Debtor or from His Other Income; VI. Execution Expenditures; VII. Accounting, Distribution and Payment of Exacted Monetary Funds; VIII. Bailiff’s Receipt; IX. Peculiarities of Execution of Decisions of Non-property Character.

The instructions also have 12 annexes which establish the forms of documents drawn up by bailiffs.

2. It is clear from the contents of the Instructions that they, inter alia, their Item 89—especially when it is related with Item 67 under which execution expenses include not only expenses of case administration and execution expenses, which are related with performance of individual execution actions, but also remuneration to the bailiff for execution of execution document (part thereof)—regulate not only procedural execution actions of execution documents provided for by law, but also establish material legal norms regulating property relations as well. It should be noted that concrete amounts of execution expenses, when one takes account of the sums subject to exaction, are indicated in the charts attached to corresponding items. It needs to be noted that the execution expenses established in the Instructions have signs of not only compensational payments but also of material sanctions and/or levies as well as obligatory payments.

 

III

1. While construing Paragraph 1 of Article 48 of the Constitution, in its ruling of 13 December 2004, the Constitutional Court noted that, inter alia, under the Constitution, the right appears in regard to the person who has completed a commissioned task, to demand that the whole remuneration for work (pay) which, according to the legal acts, must be paid to him, and that it be paid in due time. In its ruling of 18 December 2001, the Constitutional Court noted that the right to adequate compensation for work entrenched in the Constitution is directly linked with the principle of equality of all persons before the law, the court and other state institutions, and that this right is inseparably linked with the constitutional principle of a state under the rule of law, which includes the principle of the protection of legitimate expectations as well.

2. Paragraph 3 of Article 127 of the Constitution provides: “Taxes, other contributions to the budgets, and levies shall be established by means of laws of the Republic of Lithuania.” Under Item 15 of Article 67 of the Constitution, the Seimas shall establish state taxes and other obligatory payments.

The Constitutional Court has held that these and other provisions of the Constitution consolidate not only the prerogative of the Seimas to establish taxes, but also establishes by what form of the legal act such legal regulation is carried out. Under the Constitution, taxes and other obligatory payments can be established only by law (the Constitutional Court’s rulings of 15 March 1996, 10 July 1997, 9 October 1998, 15 March 2000, and 3 June 2002).

In its ruling of 3 June 2002, the Constitutional Court held that the constitutional requirement to establish state taxes and other obligatory payments only by means of a law is an important guarantee of the protection of the rights of the person.

It needs to be noted that the said constitutional imperative must also be observed mutatis mutandis while establishing other property obligations to persons as well—they also must be grounded on the law.

3. A requirement stems for the legislature and other subjects of law-making from the constitutional principle of a state under the rule of law and other constitutional imperatives to pay heed to the hierarchy of legal acts which arises from the Constitution. This requirement means, inter alia, that it is impermissible to regulate, by means of legal acts of lower legal force, the social relations which can be regulated only by legal acts of higher legal force, also that it is impermissible to establish the legal regulation in legal acts of lower legal force which would compete with that established in legal acts of higher legal force.

4. Under the Constitution, only the Constitutional Court enjoys the powers to construe the Constitution officially (the Constitutional Court’s rulings of 30 May 2003, 29 October 2003, 13 May 2004, 1 July 2004, and 13 December 2004).

Paragraph 2 of Article 107 of the Constitution provides that the decisions of the Constitutional Court on issues within its competence according to the Constitution shall be final and not subject to appeal.

Under Paragraph 2 of Article 72 of the Law on the Constitutional Court, rulings passed by the Constitutional Court shall have the force of a law and shall be binding on all State institutions, courts, all enterprises, establishments, and organisations as well as officials and citizens.

Provisions of the Constitution—its norms and principles—are construed in acts of the Constitutional Court. The official constitutional doctrine is created and developed in such acts. All subjects of law-making and those of application of law, including courts, must pay heed to the official constitutional doctrine when they apply the Constitution, they cannot interpret the provisions of the Constitution differently from their construction in the acts of the Constitutional Court. Otherwise, the constitutional principle that only the Constitutional Court enjoys the powers to construe the Constitution officially would be violated, the supremacy of the Constitution would be disregarded, and preconditions would be created for the occurrence of inconsistencies in the legal system.

All constituent parts of a ruling of the Constitutional Court are interrelated and constitute a whole; while adopting new, amending and supplementing already adopted laws and other legal acts, the state institutions that pass them are bound by the concept of the provisions of the Constitution and other legal arguments presented in the reasoning part of the Constitutional Court’s ruling (the Constitutional Court’s rulings of 30 May 2003 and 19 January 2005).

It needs to be noted that law-making institutions (officials) and those that apply law are bound not only by the concept of constitutional provisions and by arguments set forth in rulings of the Constitutional Court, but also in other acts of the Constitutional Court, i.e. conclusions and decisions. Thus, under the Constitution, all acts of the Constitutional Court in which the Constitution is construed, i.e. the official constitutional doctrine is formulated, by their content are also binding on law-making institutions (officials) and those that apply law, including courts of general jurisdictions and specialised courts.

IV

1. It has been mentioned that the instructions were confirmed by an order of the Minister of Justice.

2. 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), also, whether acts of the President of the Republic and acts of the Government of the Republic are not in conflict with the Constitution and laws (Paragraph 2).

3. The Constitutional Court has held many a time that the principle of a state under the rule of law consolidated in the Constitution implies the hierarchy of legal acts in which the Constitution takes an exceptional place; in a state under the rule of law it is prohibited to establish the legal regulation which might compete with the legal regulation established in legal acts of higher legal force, inter alia, with that established in the Constitution itself.

Thus, under the Constitution, such legal situations are impermissible where it would not be possible to verify in a court whether legal acts (parts thereof), inter alia, legal acts issued by ministers, other legal acts of lower legal force, as well as legal acts issued by municipalities, whose control as regards their compliance with the Constitution does not fall within the jurisdiction of the Constitutional Court, are not in conflict with the Constitution and laws.

4. The investigation into the compliance of legal acts whose legal force is lower than that of laws and other acts adopted by the Seimas, acts of the President of the Republic and acts of the Government, with legal acts of higher legal force is provided for by the Republic of Lithuania’s Law on the Proceedings of Administrative Cases.

Paragraph 1 of Article 112 of the Law on the Proceedings of Administrative Cases provides that “the court of general jurisdiction or court of special jurisdiction shall have the right to suspend the hearing of a case and apply to the administrative court by its ruling requesting a review of whether a concrete normative administrative act (or a part thereof) applicable in the case being heard is in conformity with the law or a normative act of the Government”. Paragraph 1 of Article 20 of the same law provides that the Supreme Administrative Court of Lithuania is “the single and last instance for the cases relating to the lawfulness of normative administrative acts adopted by the central entities of state administration”.

It must be held that the powers of administrative courts, inter alia, those of the Supreme Administrative Court of Lithuania, to investigate the compliance of legal acts of lower legal force than that of laws and other acts adopted by the Seimas, acts of the President of the Republic and acts of the Government, with the Constitution and laws stem from the aforesaid provisions of the Law on the Proceedings of Administrative Cases. While implementing these powers, administrative courts are bound by the official constitutional doctrine formulated in acts (rulings, conclusions and decisions) of the Constitutional Court.

5. Taking account of the arguments set forth, it should be held that the petition of the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into the compliance of Item 89 of the Instructions with Paragraph 1 of Article 48 of the Constitution does not fall under the jurisdiction of the Constitutional Court—it falls under the jurisdiction of the Supreme Administrative Court of Lithuania.

Under Item 2 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 consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Conforming to Paragraph 1 of Article 28 and Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the 4 August 2005 petition of the Klaipėda Regional Court requesting an investigation into whether Item 89 of the Instructions for Execution of Decisions as confirmed by the Order (No. 432) “On Confirming the Instructions for Execution of Decisions” of 31 December 2002 issued by the Minister of Justice of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 48 the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:          Armanas Abramavičius

                                                                               Toma Birmontienė

                                                                               Egidijus Kūris

                                                                               Kęstutis Lapinskas

                                                                               Zenonas Namavičius

                                                                               Ramutė Ruškytė

                                                                               Vytautas Sinkevičius

                                                                               Stasys Stačiokas

                                                                               Romualdas Kęstutis Urbaitis