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On competitions to positions of state servants

Case No. 24/07

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROCEDURE FOR ADMISSION INTO THE POSITION OF A STATE SERVANT AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 966) “ON THE APPROVAL OF THE PROCEDURE FOR ADMISSION INTO THE POSITION OF A STATE SERVANT” OF 24 JUNE 2002 (WORDINGS OF 24 JUNE 2002, 29 AUGUST 2002, 3 JUNE 2003, 25 NOVEMBER 2003 AND 28 OCTOBER 2005) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, WITH PARAGRAPH 1 OF ARTICLE 3 (WORDING OF 23 APRIL 2002) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE SERVICE, ON THE COMPLIANCE OF THE DESCRIPTION OF THE PROCEDURE FOR THE ORGANISATION OF COMPETITIONS TO THE POSITION OF A STATE SERVANT AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 966) “ON THE APPROVAL OF THE DESCRIPTION OF THE PROCEDURE FOR THE ORGANISATION OF COMPETITIONS TO THE POSITION OF A STATE SERVANT” OF 24 JUNE 2002 (WORDING OF 28 JUNE 2006) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH PARAGRAPH 1 OF ARTICLE 3 (WORDINGS OF 23 APRIL 2002 AND 7 JUNE 2007) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE SERVICE, AS WELL AS ON THE COMPLIANCE OF THE DESCRIPTION OF THE PROCEDURE FOR THE ORGANISATION OF COMPETITIONS TO THE POSITION OF A STATE SERVANT WHICH AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 966) “ON THE APPROVAL OF THE DESCRIPTION OF THE PROCEDURE FOR THE ORGANISATION OF COMPETITIONS TO THE POSITION OF A STATE SERVANT” OF 24 JUNE 2002 (WORDINGS OF 26 SEPTEMBER 2007 AND 12 DECEMBER 2007) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH PARAGRAPH 1 OF ARTICLE 3 (WORDING OF 7 JUNE 2007) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE STATE SERVICE

22 January 2008
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, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Edvardas Žukauskas, Head of the Legal Division of the Civil Service Department under the Ministry of the Interior of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 21 January 2008, considered constitutional justice case No. 24/07 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether the Procedure for Admission into the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording 25 November 2003), as well as the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant of 24 June 2002” (wording of 28 June 2006)—both to the extent that they, according to the petitioner, did not establish the requirement to record the course of the verbal examination while admitting into the position of a career state servant—the questions of the members of the commission for competition of aspirants to the position to a state servant and the answers of the aspirants—were not in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the principle of transparency of the state service which, according to the petitioner, is enshrined in Paragraph 1 of Article 3 (wording of 23 April 2002) of the Republic of Lithuania’s Law on the State Service.

The Constitutional Court

has established:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, was investigating an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the Procedure for Admission into the Position of a State Servant (hereinafter also referred to as the Procedure) as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording 25 November 2003), as well as the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant (hereinafter also referred to as the Description) as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006)—both to the extent that they, according to the petitioner, did not establish the requirement to record the course of the verbal examination while admitting into the position of a career state servant (hereinafter also referred to as the examination, the verbal examination)—to record the questions of the members of the commission for competition of aspirants to the position of a state servant (hereinafter also referred to as the commission) and the answers of the aspirants—were not in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution and with the principle of transparency of the state service which, according to the petitioner, is enshrined in Paragraph 1 of Article 3 (wording of 23 April 2002) of the Law on the State Service.

II

The petition of the Supreme Administrative Court of Lithuania, the petitioner, is based on the following arguments.

1. Under the Law on the State Service, the procedure for admission into the position of a state servant shall be established not only by this law and other laws, but also by legal acts of the Government (in Paragraph 6 of Article 9 (wording of 4 July 2003) reference is made to the Procedure for Admission into the Position of a State Servant as approved by the Government, and in Paragraph 9 of Article 10 (wording of 22 December 2005) reference is made to the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Government). Under the Law on the State Service, a person admitted to the position of a career state servant through competition shall be examined in writing (a test) and verbally (an interview); the examination shall be taken in the state language—Lithuanian; in the course of an interview, the ability of a person to perform the functions specified in the job description of the state service, as well as the knowledge of other languages which are obligatory in order to perform such functions, shall be assessed (Paragraph 2 of Article 11 (wording of 22 December 2005)), however, the Law on the State Service did not regulate the procedure for organisation of competitions to the position of a state servant in more detail. It was done and is being done by legal acts of the Government.

2. The Procedure as approved by government resolution No. 966 of 24 June 2002, inter alia, prescribed: during a verbal examination, each member of the commission gives an individual question (which must be the same to every aspirant) to every aspirant in order to assess the capabilities of the aspirant to perform the functions established in the job description of the state servant for which the competition is taking place; the aspirants may also be asked the questions specifying their answers; the aspirants are examined verbally individually, without the participation of other aspirants; the sequence of aspirants during the verbal examination is established according to the alphabetical order (Item 50 (wording of 25 November 2003)); each member of the commission evaluates the knowledge of the aspirants during the verbal examination individually—from 1 to 10 points; the worst evaluation is 1 point, and the best evaluation is 10 points; upon evaluating the knowledge of every aspirant, the members of the commission fill in the table of individual evaluation of the verbal examination of the aspirants for a position of the state servant (under Annex 3 of the Procedure) (Item 51 (wording of 25 November 2003)). In Annex 5 of the Procedure, the form of the protocol of the competition of the aspirants to the position of a state servant was approved. In government resolution No. 966 of 24 June 2002, there is no requirement to record the questions asked by the members of the commission during the verbal examination and the answers given to them by the aspirants.

The title of the Procedure was amended by the Resolution of the Government of the Republic of Lithuania (No. 640) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 28 June 2006—it was named as the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant. In the Description, the course of the verbal examination is regulated in an analogous way (only the table of individual evaluation of the verbal examination of the aspirants for the position of a state servant is provided for in Annex 4 of the Description).

3. The decision of the commission for competition of aspirants to the position of a state servant regarding the winner of the competition is directly determined by the evaluations of the written examination and verbal examination. One may lodge a complaint against the actions, failure to act and/or decisions, whereby the provisions of the Procedure (Description) are violated, under the procedure established in the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, thus, when the court considers a complaint of a person regarding the results of the competition, it must also be verified whether the aspirants were assessed fairly, however, because of the fact that it is not required to record the course of the verbal examination, it is essentially not allowed that the court verify the results of the verbal examination. In the opinion of the Supreme Administrative Court of Lithuania, the petitioner, it may limit the right of a person to judicial defence which is enshrined in Paragraph 1 of Article 30 of the Constitution, in which it is prescribed that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, because the right of the person to apply to court must be not only formal, but also real: the person must have a possibility of proving and contesting the violation of his rights or legitimate interests in court. Due to the fact that, under Paragraph 1 of Article 109 of the Constitution, in the Republic of Lithuania, justice shall be administered only by courts, the absence of the requirement to record the course of the verbal examination, which determines the fact that the fairness of the evaluations received by the aspirants for the verbal examination may not be verified in court, may also limit the powers of the court to administer justice.

In addition, it becomes doubtful whether the absence of the said requirement complies with the principle of transparency which is enshrined in Paragraph 1 of Article 3 (wording of 23 April 2002) of the Law on the State Service and upon which the state service of the Republic of Lithuania is grounded.

4. According to the Supreme Administrative Court of Lithuania, the petitioner, the competition, regarding the results of which the dispute arose, and while deciding which one applied to the Constitutional Court, took place on 19 April 2006. If the results of this competition were recognised as invalid, the competition would have to be held anew, therefore, the investigation on the compliance of the substatutory legal regulation which was established not only at that time, but also later (at the time of the possible new competition) with the Constitution and the principle of transparency of the state service which is consolidated in the Law on the State Service is important for settling the said dispute.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Government, the party concerned, who was E. Žukauskas, in which it is stated that the impugned legal regulation established by the Government is not in conflict with the provisions of the Constitution and the Law on the State Service which are specified by the Supreme Administrative Court of Lithuania, the petitioner. The position of the representative of the Government, the party concerned, is based on the fact that, according to him, by Paragraph 6 of Article 9 (wording of 4 July 2003) of the Law on the State Service, the Government was commissioned to approve the procedure for admission into the position of a state servant, while by Paragraph 9 of Article 10 (wording of 22 December 2005) it was commissioned to approve the description of the procedure for organisation of competitions to the position of a state servant, i.e. to regulate the corresponding procedural relations; it was not obliged to regulate in any way the recording of the conversation between the aspirants for the position of a state servant and the members of the commission and it could not exceed the limits of the commission established for it. In addition, while recording such examination by technical means (making audio or video record), one interferes with the privacy of the person, therefore, these relations (especially due to the fact that the voice or the image are recorded) should be regulated not by means of a government resolution, but by means of a law, moreover, that, according to E. Žukauskas, only a law must ensure the person’s right to apply to court which is established in Paragraph 1 of Article 30 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from P. Baguška, the Minister of Justice of the Republic of Lithuania, were received. In the opinion of the Minister, doubts arise regarding the legal regulation established by the Government, whether the constitutional rights of persons are ensured consistently, as well as whether a human being’s right to work and his right to defend this right in court are not limited; it also implies the violation of the public interest to properly and efficiently organise the activity of the public service.

V

At the Constitutional Court’s hearing, the representative of the Government, the party concerned, E. Žukauskas virtually reiterated the arguments set forth in his written explanations as well as presented additional explanations.

The Constitutional Court

holds that:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording 25 November 2003), as well as the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006)—both to the extent that they, according to the petitioner, did not establish the requirement to record the course of the verbal examination—to record the questions of the members of the commission and the answers of the aspirants—were not in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution and with the principle of transparency of the state service which, according to the petitioner, is enshrined in Paragraph 1 (wording of 23 April 2002) of Article 3 of the Law on the State Service.

2. On 24 June 2002, the Government adopted the Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” whereby it approved the Procedure for Admission into the Position of a State Servant. The Procedure regulated the admission into the position of a state servant, inter alia, in the case when one is admitted into that position by means of a competition. It was, among other things, stipulated that a person, who is admitted, by means of a competition, into the position of a career state servant, shall be examined in writing (a test) and verbally (an interview): during the verbal examination, each member of the commission gives an individual question (which must be the same to every aspirant) to every aspirant in order to assess the capabilities of the aspirant to perform the functions established in the job description of the state servant for which the competition is taking place; the aspirants are examined verbally individually, without the participation of other aspirants (Item 35); each member of the commission evaluates the knowledge of the aspirants during the verbal examination individually—from 1 to 10 points; the worst evaluation is 1 point, and the best evaluation is 10 points; upon evaluating the knowledge of every aspirant, the members of the commission shall fill in the table of individual evaluation of the verbal examination of the aspirants for a position of the state servant (under Annex 3 of the Procedure) (Item 36). In Annex 3 of the Procedure, the form of the minutes of the competition of the aspirants to the position of a state servant was approved. In government resolution No. 966 of 24 June 2002, in the Procedure as approved by it, there was no requirement to record the questions asked by the members of the commission during the verbal examination and the answers given to them by the aspirants.

3. The Procedure as approved by government resolution No. 966 of 24 June 2002 was amended and/or supplemented by the Resolution of the Government of the Republic of Lithuania (No. 1366) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 29 August 2002, the Resolution of the Government of the Republic of Lithuania (No. 695) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 3 June 2003, the Resolution of the Government of the Republic of Lithuania (No. 1452) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 25 November 2003 and the Resolution of the Government of the Republic of Lithuania (No. 1152) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 28 October 2005.

It needs to be noted that after the Government Resolution (No. 1452) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 25 November 2003 amended the Procedure as approved by government resolution No. 966 of 24 June 2002, also the provisions which had been approved in Item 35 of the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 24 June 2002) were supplemented; in addition, the provisions which had been approved in Items 35 and 36 of the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 24 June 2002) were set forth in other items, namely Items 50, 51 and 52 of the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 25 November 2003). It needs to be mentioned that it was prescribed that the aspirants may also be asked the questions specifying their answers (Item 50 of the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 25 November 2003 and 28 October 2005)).

When the aforementioned amendments and/or supplements were made, the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 29 August 2002, 3 June 2003, 25 November 2003 and 28 October 2005), as well as the Procedure as approved by it, did not establish the requirement to record the questions asked by the members of the commission during the verbal examination and the answers given to them by the aspirants.

4. On 28 June 2006, the Government adopted the Resolution (No. 640) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002”, whereby, inter alia, the title of the Procedure was amended—it was titled as the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant.

The Description as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006) was amended and supplemented by the Resolution of the Government of the Republic of Lithuania (No. 1017) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant’ of 24 June 2002” of 26 September 2007 and by the Resolution of the Government of the Republic of Lithuania (No. 1232) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 966) ‘On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant’ of 24 June 2002” of 12 December 2007.

In the aspect, in which the Supreme Administrative Court of Lithuania, the petitioner, impugns the compliance of the legal regulation established by the Government with the Constitution and the principle of transparency of the state service which is enshrined in the Law on the State Service, the legal regulation of the course of verbal examination established in the Description, inter alia, Items 51 and 52 thereof, as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wordings of 28 June 2006, 26 September 2007 and 12 December 2007), was analogous with that established in the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 29 August 2002, 3 June 2003, 25 November 2003 and 28 October 2005) (only the table of individual evaluation of the verbal examination of the aspirants for a position of the state servant is presented not in Annex 3, but in Annex 4 of the Description): the Description as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wordings of 28 June 2006, 26 September 2007 and 12 December 2007) also did not include and does not include the established requirement to record the questions asked by the members of the commission during the verbal examination and the answers given to them by the aspirants.

5. In government resolution No. 966 of 24 June 2002, it is specified that the Procedure (Description) was approved pursuant to Paragraph 5 of Article 9 of the Law on the State Service (the Preamble of the government resolution of 24 June 2002 (wordings of 24 June 2002, 29 August 2002 and 3 June 2003)), later—that pursuant to Paragraph 6 of Article 9 of this law (the Preamble of the government resolution of 24 June 2002 (wordings of 25 November 2003 and 28 October 2005)), and even more later—that pursuant to Paragraph 9 of Article 10 of the mentioned law (the Preamble to the government resolution of 24 June 2002 (wordings of 28 June 2006, 26 September 2007 and 12 December 2007)). In the specified articles (paragraphs thereof) of the Law on the State Service, it was prescribed that the procedure for admission into the position of a state servant shall be established by this law, other laws and the procedure as approved by the Government, and later (after the title of the Procedure was amended and it was titled the Description)—that the procedure for admission into the position of a state servant shall be established by this law, statutes, the Republic of Lithuania’s Law on Diplomatic Service and the description of the procedure for organisation of competitions to the position of a state servant as approved by the Government.

In this context, it needs to be noted that, as the Constitutional Court has held, the procedural relations of the state service (as well as those related to it) may be regulated by means of substatutory acts, however, this must be done so that there would be no competition with the legal regulation established by law (the Constitutional Court’s rulings of 13 December 2004 and 13 August 2007).

6. The Law on the State Service (in the opinion of the Supreme Administrative Court of Lithuania, the petitioner, the legal regulation established in the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 25 November 2005) and in the Description as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006) is in conflict with Paragraph 1 of Article 3 (wording of 23 April 2002) of the said law), was adopted on 8 July 1999 and came into force (with the specified exceptions) on 30 July 1999. This law has been amended and/or supplemented more than once.

7. On 23 April 2002, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on the State Service, Article 1 whereof amended the Law on the State Service (wording of 8 July 1999 with subsequent amendments and supplements) and set it forth in its new wording. Article 2 of the Law on Amending the Law on the State Service prescribed that the procedure of coming into force and implementation of this law shall be established by the Law on the Implementation of the Law on Amending the Law on the State Service. On the same day, i.e. 23 April 2002, the Seimas adopted the Republic of Lithuania the Law on the Implementation of the Law on Amending the Law on the State Service which came into force on 4 May 2002. Paragraph 1 of Article 1 of the Law on the Implementation of the Law on Amending the Law on the State Service prescribed that “the Law on Amending the Law on the State Service shall come into force as from 1 July 2002, save the articles of the Law on the State Service, for which this Law establishes other dates of coming into force”, while Paragraph 2 thereof prescribed that “Articles 2, 21 and 22 of the Law on the State Service shall come into force as from 1 May 2002”. Even though the Law on the Implementation of the Law on Amending the Law on the State Service, inter alia, Article 1 thereof, was amended (in addition, by the Constitutional Court’s Ruling “On the Compliance of Some Legal Acts Whereby the Relations of the State Service and Those Linked Thereto are Regulated with the Constitution of the Republic of Lithuania and Laws” of 13 December 2004, some provisions of the said law (set forth in its wordings of 4 July 2002 and 10 December 2002) were ruled to be in conflict with the Constitution), Paragraph 1 of this article has not been amended. The specified reservation “save the articles of the Law on the State Service, for which this Law establishes other dates of coming into force” did not include Paragraph 1 of Article 3 of the Law on the State Service (in the opinion of the Supreme Administrative Court of Lithuania, the petitioner, the legal regulation established in the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 25 November 2005) and in the Description as approved by the Government Resolution (No. 966) “On the Approval of the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006) is in conflict with said Paragraph 1 of Article 3 of the Law on the State Service), therefore, this paragraph had to be applied as from 1 July 2002.

8. Paragraph 1 of Article 3 (wording of 23 April 2002) of the Law on the State Service prescribed: “The state service of the Republic of Lithuania shall be based on the principles of the supremacy of law, equal rights, loyalty, political neutrality, transparency, responsibility for the adopted decisions and career development.”

9. The Law on the State Service (wording of 23 April 2002) has been amended and/or supplemented more than once (in addition, some provisions thereof (set forth in the wordings of 23 April 2002 and 13 July 2004) were ruled to be in conflict with the Constitution by the Constitutional Court’s Ruling “On the Compliance of Some Legal Acts Whereby the Relations of the State Service and Those Linked Thereto are Regulated with the Constitution of the Republic of Lithuania and Laws” of 13 December 2004), however, Paragraph 1 of Article 3 thereof, set forth in its wording of 23 April 2002, has been amended only by the Republic of Lithuania’s Law on Amending and Supplementing Articles 3, 4, 8, 9, 18, 19, 20, 21, 22, 23, 25, 38, 41, 43, 44, 49 and 50 and Appendix of the Law on the State Service and Supplementing the Law by Articles 221, 481 and 501.

Paragraph 1 (which is applied as from 23 June 2007, i.e. already after the petition from the Supreme Administrative Court of Lithuania, the petitioner, subsequent to which this constitutional justice case is considered was received at the Constitutional Court) of Article 3 (wording of 7 June 2007) of the Law on the State Service prescribes: “The state service of the Republic of Lithuania shall be based on the principles of the supremacy of law, equal rights, loyalty, political neutrality, transparency, responsibility for the adopted decisions, career development and service cooperation”.

10. While comparing the present wording (7 June 2007) and the former wording (23 June 2002) of Paragraph 1 of Article 3 of the Law on the State Service, it is obvious that, in addition to other principles, there was one more principle enshrined on which the state service of the Republic of Lithuania is based, namely the principle of service cooperation; in other aspects, the legal regulation established in this paragraph was not amended.

11. It needs to be noted that the principle of transparency of the state service which, according to the Supreme Administrative Court of Lithuania, the petitioner, is violated by the legal regulation established by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (with the corresponding amendments made subsequently), was not and is not directly mentioned anywhere in the Law on the State Service (wording of 23 April 2002, with subsequent amendments and supplements), except in Paragraph 1 of Article 3 thereof, and the content of this principle was not and is not defined expressis verbis in this law.

12. It is universally recognised that transparency, as the principle of the activity of the institutions of public power and officials, implies the imparting of information and communication, openness and publicity (inasmuch as it does not harm other values protected by law), accountability to the corresponding community and responsibility for decisions adopted by the officials who adopt the said decisions, as well as the fact that the adopted decisions must be grounded and clear and that one could, if need may be, rationally reason these decisions; other persons must have a possibility of disputing these decisions under established procedure. Transparency should be linked with participatory democracy, freedom of information and the opportunity for the citizens and other persons to criticise the activity of state institutions. The transparency of the state service is a necessary precondition against the consolidation of corruption and protectionism, against the discrimination of some persons and granting privileges to others, against the abuse of power, thus, also a necessary precondition for the people for trusting the institutions of public power and the state in general.

13. In the context of the constitutional justice case at issue, it needs to be noted that the requirements for transparency of the state service is not mentioned in the Constitution expressis verbis, but it certainly does not mean that the transparency of the state service is not regarded as an imperative which stems from the Constitution. Quite to the contrary, the transparency of the state service is a constitutional principle. The imperative of transparency of the state service stems from various provisions of the Constitution—its norms and principles, inter alia, from the provisions of Article 5 thereof that the scope of power shall be limited by the Constitution (Paragraph 2) and that state institutions shall serve the people (Paragraph 3), the provisions of Article 25 thereof which enshrines the freedom of expression and freedom of seeking, receiving and imparting information and ideas, as well as the right of a citizen to receive, according to the procedure established by law, any information concerning him that is held by state institutions (Paragraph 5) and the provisions of Article 33 thereof that citizens shall have the right to participate in the governance of their state both directly and through their democratically elected representatives as well as the right to enter on equal terms in the state service of the Republic of Lithuania (Paragraph 1), that citizens shall be guaranteed the right to criticise the work of state institutions or their officials and to appeal against their decisions and that persecution for criticism shall be prohibited (Paragraph 2), as well as that citizens shall be guaranteed the right of petition; the procedure for implementing this right shall be established by law (Paragraph 3).

The principle of transparency of the state service which is enshrined in the Law on the State Service should be construed while taking account of other provisions of the Constitution, inter alia, of the striving for a civil society proclaimed in the Preamble to the Constitution, the constitutional imperatives of public spirit, open society and social harmony, the constitutional principles of a state under the rule of law, equality of rights of persons, justice, democracy, responsible governance, as well as the constitutional concept of the state service which implies, among other things, the publicity and openness of it as a system.

In this context, it needs also to be mentioned that the principle of transparency is an important principle of European Union law which is consolidated, inter alia, in the jurisprudence of the Court of Justice of the European Communities.

14. The constitutional imperative of transparency of the state service implies certain requirements which must be followed by the institutions of public power, the officials thereof and by the state servants when they form the corps of state servants.

It has been mentioned that, under Paragraph 1 of Article 33 of the Constitution, citizens shall have the right to enter on equal terms in the state service of the Republic of Lithuania. This right should be linked with, inter alia, the right of each human being to freely choose a job which is consolidated in Article 48 of the Constitution (the Constitutional Court’s rulings of 4 March 1999 and 13 August 2007).

The Constitutional Court has held that the right of the citizen to enter the state service of the Republic of Lithuania under equal conditions (Paragraph 1 of Article 33 of the Constitution) is not absolute; the state cannot oblige itself and it does not oblige itself to accept each person to work in the state service; the state service must be qualified, it must be able to fulfil the tasks commissioned to it; those who wish to become state servants or officials must also have corresponding education, professional experience and certain personal characteristics; in addition, the higher position, or the more important area of activities, the higher requirements are raised before the person holding such a position (the Constitutional Court’s rulings of 4 March 1999 and 13 August 2007).

The Constitutional Court has also held that the constitutional purpose of the state service and special tasks assigned to the state service determine that certain common requirements—the general conditions of entering the state service—may and must be set for the citizen who enters the state service, and the person who fails to meet them will not be able to become a state servant. The said requirements must be clear and common to all those who seek to hold a respective position at the state service, they must be established by law and must be known in advance to everyone who enters the state service. The following common requirements—the general conditions of entering the state service—should be mentioned: loyalty to the State of Lithuania and its constitutional order, knowledge of the Constitution and bases of the legal system (including the catalogue of human rights and freedoms), good knowledge of the state language, absence of the conflict between the position which is being sought, and private interests (or removal of such conflict before the persons starts holding the position that has been sought), etc. Moreover, general requirements linked with personal characteristics of the person entering the state service, his reputation, education, etc. may be established. The constitutionally reasonable general conditions preventing the person from entering the state service may also be provided for. The requirements of professionalism and qualification which are raised before the state service as a system also imply that the special requirements for the persons striving for particular duties at the state service or a concrete state or municipal institution—special conditions for those who strive for certain duties at the state service—may be established by legal acts; these special conditions of entering the state service may be differentiated according to the content of respective duties at the state service. The following requirements—the special conditions of entering the state service—as professional competence, experience, knowledge of languages, special knowledge and skills, etc., as well as the requirements linked with the reputation of the person who enters the state service, his personal characteristics etc., should be mentioned; while when admitting one to a certain office, a great variety of special conditions may be provided for, for example, the ones linked with the health of the person, his physical abilities, relations with other persons, etc. All the established special requirements of entering the state service must be constitutionally reasonable, otherwise, the constitutional right of the citizen to enter the state service of the Republic of Lithuania under equal conditions and the constitutional right of the person to freely choose a job would be violated as well (the Constitutional Court’s ruling of 13 December 2004).

In the context of the constitutional justice case at issue, it needs to be particularly emphasised that while deciding regarding the aspirants to the corresponding positions in state service, one must heed the principle of equal rights of persons (the equality of all persons before the law, the court and other state institutions or officials). The constitutional imperative of equal conditions when entering the state service implies the competition between those who enter it, as well as objective, impartial assessment and selection of those who enter the state service. The citizens who seek to become admitted to the state service may not be discriminated, nor they may be granted privileges on the grounds expressis verbis specified in Paragraph 2 of Article 29 of the Constitution or any other constitutionally unjustifiable grounds. The person who believes that the principle of equal rights, thus, his constitutional right to enter the state service of the Republic of Lithuania under equal conditions as well, was violated when he attempted to enter the state service, has the right to seek to defend his violated right at court (the Constitutional Court’s ruling of 13 December 2004).

15. Because of the fact that the right of the citizen to enter the state service under equal conditions stems from the Constitution, the grounds (principles) of testing the knowledge and capabilities of the aspirants to the position of a state servant necessary in order to perform the corresponding duties of a state servant must be established by law. In the context of the constitutional justice case at issue, it should be noted that the knowledge and capabilities of a person which are necessary in order to perform the corresponding duties of a state servant may be tested by examining him.

It should be emphasised that functioning and efficiency of all the state service depends very much on the selection of persons to the state service. When a person is selected to the position of a state servant by means of a competition while examining him, such a procedure may not be regarded only as a formal matter. The examination—regardless of whether it is a written or a verbal examination or whether it is both a written and verbal examination—must have its purpose and must be oriented to the testing and assessment of the knowledge and capabilities which are necessary for every state servant, as well as of the specific knowledge and capabilities which are necessary in order to implement the functions which are established in the description of the position of the state servant for which the person is aspiring. The winner of the competition to a certain position of a state servant—the person who will perform specific functions defined in the description of the position of a state servant—is established according to the examination results of the aspirants who participated, therefore, the questions (tasks) of the examination—regardless of whether it is a written or a verbal examination or whether it is both a written and verbal examination—must first of all be related with those positions in the state service, to which one is aspiring (for which the competition is being held).

16. Paragraph 1 of Article 30 of the Constitution prescribes that the person whose constitutional rights or freedoms are violated shall have the right to apply to court. This right is an absolute one (the Constitutional Court’s rulings of 30 June 2000, 17 August 2004, 29 December 2004, 7 February 2005, 16 January 2006, and 9 May 2006). The Constitutional Court has held in its acts more than once that a person, who thinks that his rights or freedoms are violated, has the absolute right to an independent and impartial court—an arbiter, which would solve the dispute; under the Constitution, the legislature has the duty to establish such legal regulation, whereby all disputes regarding a violation of rights or freedoms of a person could be decided in court; the rights of the person must be protected not formally, but in reality and in an effective manner against unlawful actions of private persons as well as against those of state institutions or officials. Paragraph 1 of Article 109 of the Constitution prescribes that, in the Republic of Lithuania, justice shall be administered only by courts. Under the Constitution, one may not establish any such legal regulation which would create preconditions to restrict, let alone deny, the powers of the court to administer justice and which would deny the right of a person, who thinks that his rights or freedoms were violated, to defend his rights and duties in court.

Therefore, in order that a person could implement his right to defend his violated constitutional right to enter on equal terms in the state service of the Republic of Lithuania in court not formally, but in reality and in an effective manner, the reasoning of the decisions of non-admitting him into the position of a state servant must be clear and the information regarding the reasoning of these decisions must be accessible to court. Otherwise, the court would not be able to decide the corresponding case.

17. The Constitutional Court has held that the pre-judicial procedure of consideration of disputes may also be established (the Constitutional Court’s rulings of 2 July 2002, 4 March 2003, 17 August 2004, 29 December 2004, 7 February 2005, and 16 January 2006, and its decision of 8 August 2006).

Thus, the information about the decisions regarding the non-admission of a person into the corresponding position in the state service must be accessible also to the institutions which decide the corresponding dispute under pre-judicial procedure.

18. Therefore, if a law prescribes that the knowledge and capabilities of a person which are necessary for the implementation of the corresponding duties of a state servant are tested by examining him, the course of the examination (inter alia, the questions of the members of the commission and the answers of the aspirants) must be recorded and must be accessible both to the institutions which decide the corresponding dispute and to the court.

It also needs to be emphasised that one must choose various ways of the recording of the course of such examination. The discussion regarding such ways is not a matter of the constitutional justice case at issue. However, it needs to be noted that while protecting the data regarding the course of the examinations and while disclosing them according to the procedure established by law, heed must be paid the person’s right to privacy which is enshrined in Article 22 of the Constitution.

19. It needs also to be emphasised that the court which decides the case regarding non-admission of a person into the corresponding position in the state service acts not as a “commission for consideration of examination complaints”, but as a jurisdictional institution, which decides whether the procedure of examination (competition) and the constitutional right of a person to enter on equal terms in the state service of the Republic of Lithuania were not violated.

20. Under Paragraph 1 of Article 11 (wording of 23 April 2002) of the Law on the State Service, recruitment of career state servants shall be made through competition and without competition. Paragraph 2 of this article, inter alia, prescribed: “A person recruited as a career state servant through competition shall be examined in writing (a test) and verbally (an interview)”; “In the course of an interview, the ability of a person to perform the functions specified in the job description shall be assessed”.

These provisions remained also after Paragraph 2 of Article 11 of the Law on the State Service was set forth in its wording of 22 December 2005 (by the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 4, 4, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 21, 22, 24, 27, 30, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 49 and 50 of the Law on the State Service and Supplementing the Law by Articles 161 and 311 which was adopted by the Seimas on 22 December 2005 and which came into force (with the specified exceptions) on 12 January 2006).

21. While deciding, subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, whether the substatutory legal regulation established by the Government which is designed for recording the course of the examination while admitting one to the position of a state servant is not in conflict with the Constitution and Paragraph 1 of Article 3 (wording of 23 April 2002) of the Law on the State Service, it needs to be held that the fact that the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 24 June 2002, 29 August 2002, 3 June 2003, 25 November 2005 and 28 October 2005) and the Description as approved by this government resolution (wordings of 28 June 2006, 26 September 2007 and 12 December 2007) did not prescribe that the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—had to be recorded, did not comply (does not comply) with the principle of transparency of the state service which stems from the Constitution and which is enshrined in Paragraph 1 of Article 3 (wording of 23 April 2002 and 7 June 2007) of the Law on the State Service; the said substatutory legal regulation created (creates) preconditions for violation of the constitutional right of a person to enter on equal terms in the state service of the Republic of Lithuania, the principle of equal rights of persons, the constitutional right of the person whose constitutional rights or freedoms are violated to apply to court, and the powers of the court to administer justice which are consolidated in the Constitution.

22. It has been mentioned that one may choose various ways of recording the course (inter alia, the questions of the members of the commission and the answers of the aspirants) of such examination as well as that the discussion regarding such ways is not a matter of the constitutional justice case at issue. Under Paragraph 9 (taking account of the fact that, as it has been mentioned, the procedural relations of the state service (as well as those related to it) may be regulated by means of substatutory acts) of Article 10 (wording of 22 December 2002, in which this article is set forth at the time of consideration of the constitutional justice case at issue) of the Law on the State Service, the establishment of the ways (way) of recording the course of the examination is within the competence of the Government. Taking account of the purpose and sphere of regulation of the Description, it needs to be done namely in this legal act of the Government—in the constituent part of the government resolution which approves the said Description.

It needs to be emphasised that it is not the fact that the recording of the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was/is inappropriately regulated in the Procedure as approved by the government resolution of 24 June 2002 (wordings of 24 June 2002, 29 August 2002, 3 June 2003, 25 November 2005 and 28 October 2005) and in the Description as approved by this government resolution (wordings of 28 June 2006, 26 September 2007 and 12 December 2007) that did not comply (does not comply) with the principle of transparency of the state service which is enshrined in Paragraph 1 of Article 3 (wording of 23 April 2002 and 7 June 2007) of the Law on the State Service, which created (creates) preconditions for violation of the constitutional right of a person to enter on equal terms in the state service of the Republic of Lithuania, the principle of equal rights of persons and the constitutional right of the person whose constitutional rights or freedoms are violated to apply to court, and the powers of the court to administer justice which are consolidated in the Constitution, but the fact that these acts do not establish in general that the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—must be recorded.

23. Taking account of the arguments set forth, the following conclusions should be drawn:

the Procedure as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 24 June 2002, 29 August 2002, 3 June 2003, 25 November 2005 and 28 October 2005), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution, as well as with Paragraph 1 of Article 3 (wording of 23 April 2002) of the Law on the State Service;

the Description as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution, as well as with Paragraph 1 of Article 3 (wordings of 23 April 2002 and 7 June 2007) of the Law on the State Service;

the Description as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 26 September 2007), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution, as well as with Paragraph 1 of Article 3 (wording 7 June 2007) of the Law on the State Service;

the Description as approved by the Government Resolution (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 12 December 2007), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—is in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution, as well as with Paragraph 1 of Article 3 (wording 7 June 2007) of the Law on the State Service.

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 Procedure for Admission into the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wordings of 24 June 2002, 29 August 2002, 3 June 2003, 25 November 2005 and 28 October 2005; Official Gazette Valstybės žinios, 2002, No. 65-2654; 2002, No. 86-3693; 2003, No. 55-2435; 2003, No. 112-5006; 2005, No. 130-4671), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, as well as with Paragraph 1 of Article 3 (wording of 23 April 2002) of the Republic of Lithuania’s Law on the State Service.

2. To recognise that the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006; Official Gazette Valstybės žinios, 2006, No. 73-2784), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, as well as with Paragraph 1 of Article 3 (wordings of 23 April 2002 and 7 June 2007) of the Republic of Lithuania’s Law on the State Service.

3. To recognise that the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 26 September 2007; Official Gazette Valstybės žinios, 2007, No. 103-4210), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—was in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, as well as with Paragraph 1 of Article 3 (wording 7 June 2007) of the Republic of Lithuania’s Law on the State Service.

4. To recognise that the Description of the Procedure for the Organisation of Competitions to the Position of a State Servant as approved by the Resolution of the Government of the Republic of Lithuania (No. 966) “On the Approval of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 12 December 2007; Official Gazette Valstybės žinios, 2007, No. 135-5467), to the extent that it did not establish the requirement to record the course of the verbal examination—inter alia, the questions of the members of the commission and the answers of the aspirants—is in conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 33, Paragraph 1 of Article 48 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, as well as with Paragraph 1 of Article 3 (wording 7 June 2007) of the Republic of Lithuania’s Law on the State Service.

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
                                                                      Egidijus Kūris
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Vytautas Sinkevičius
                                                                      Stasys Stačiokas
                                                                      Romualdas Kęstutis Urbaitis