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On dismissing legal proceedings

Case No. 02/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON DISMISSING THE LEGAL PROCEEDINGS IN THE CASE SUBSEQUENT TO THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ARTICLE 1 OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 1373) “ON AWARDING ORDERS AND MEDALS OF THE STATE OF LITHUANIA ON THE OCCASION OF THE DAY OF STATE (CORONATION OF KING MINDAUGAS OF LITHUANIA)” OF 14 JUNE 2001, TO THE EXTENT THAT IT PRESCRIBES THAT JURIJ BORISOV WAS AWARDED THE MEDAL OF DARIUS AND GIRĖNAS, IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH ARTICLE 128 (WORDING OF 1 JULY 1993) OF THE REPUBLIC OF LITHUANIA’S LAW ON ORDERS, MEDALS AND OTHER DECORATIONS

 

29 December 2006

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, 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, in its procedural sitting, has considered the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, consisting of Petras Gražulis, Stanislovas Buškevičius, Jonas Čiulevičius, Algimantas Matulevičius, Jonas Jurkus, Rimantas Sinkevičius, Alfonsas Pulokas, Mykolas Pronckus, Gintautas Mikolaitis, Vytautas Saulys, Juozas Raistenskis, Vytautas Šustauskas, Juozas Matulevičius, Gabriel Jan Mincevič, Vladas Žalnerauskas, Kęstutis Skamarakas, Valerijus Simulik, Ramūnas Karbauskis, Egidijus Klumbys, Gintaras Didžiokas, Vytautas Einoris, Visvaldas Nekrašas, Petras Papovas, Antanas Baura, Julius Veselka, Rolandas Pavilionis, Edvardas Karečka, Vasilijus Popovas, Nikolajus Medvedevas and Jūratė Juozaitienė, requesting an investigation into whether Article 1 of the Decree of the President of the Republic of Lithuania (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas, is not in conflict with the Constitution of the Republic of Lithuania and whether this Decree of the President of the Republic, to the specified extent, was not in conflict with Article 128 of the Republic of Lithuania’s Law on Orders, Medals and other Decorations.

The Constitutional Court

has established:

I

1. On 14 June 2001, the President of the Republic issued the Decree (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)”, Article 1 whereof, inter alia, prescribes:

On the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania), for merits to the State of Lithuania and for efforts to spread the name of Lithuania in the world and for help to integrate it into the community of states of the world, the following citizens of the Republic of Lithuania and foreign states shall be awarded orders and medals: <…>

the Medal of Darius and Girėnas

to Jurij Borisov—the President of the joint-stock company ‘Avia Baltika’ and a supporter of Lithuanian aviators.”

2. A group of members of the Seimas, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether Article 1 of this decree of the President of the Republic, to the extent that it prescribes that the Medal of Darius and Girėnas is awarded to Jurij Borisov—the President of the joint-stock company “Avia Baltika” and supporter of the Lithuanian aviators—is not in conflict with the Constitution and whether this decree of the President of the Republic to the specified extent was not in conflict with Article 128 of the Law on Orders, Medals and other Decorations (hereinafter also referred to as the Law).

This petition was received at the Constitutional Court on 27 November 2003.

3. By the 6 January 2004 ordinance (No. 2B-04) of the President of the Constitutional Court, subsequent to this petition of the group of members of the Seimas, the petitioner, the preparation of case No. 02/04 for the Constitutional Court’s hearing was begun.

II

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

Under Article 128 the Law on Orders, Medals and other Decorations, which was in effect at the time when the impugned decree of the President of the Republic was issued, the Medal of Darius and Girėnas was established in order to commemorate the flight over the Atlantic made by Steponas Darius and Stasys Girėnas in 1933 and could be granted in order to honour the persons who were with special merits to the Lithuanian aviation. Article 1 of the Law, wherein it is prescribed that the orders, medals and other decorations of the Republic of Lithuania shall be granted in order to honour the persons with merits at the time of peace and war and to the Lithuanian citizens in order to encourage them to work for the good of the State of Lithuania and its society means that such persons should be loyal to the Republic of Lithuania. However, according to the petitioner, the aviation company “Avia Baltika” UAB, headed by Jurij Borisov, “has been known to the officials of law and order” since 1997; according to the petitioner, on 22 March 2002, the Prosecutor General of the Republic of Lithuania instituted a criminal case subsequent to the material regarding the import of dual-use goods by the aviation company “Avia Baltika” UAB, which was collected in December 1997, as well as, according to the petitioner, on 4 November 2002, the Chief Police Commissioner’s Office for the City of Kaunas instituted two criminal cases subsequent to the material of 14 May 1999 regarding the import of the controlled goods by the aviation company “Avia Baltika” UAB which were later transferred to the Office of the Prosecutor General. However, the President of the Republic Valdas Adamkus, without taking account “of the said and other facts” and following only the presentation (letter No. 524 of 4 June 2001) of the Department of Physical Education and Sports under the Government of the Republic of Lithuania, wherein it was specified that J. Borisov financially supported the sport of aeronautics, awarded the Medal of Darius and Girėnas to J. Borisov.

III

In the course of the preparation of the case for the judicial consideration, written explanations were received from the representatives of the President of the Republic, the party concerned, who were Andrius Meškauskas, Head of the Office of the President of the Republic and Chancellor or the orders of the Republic of Lithuania, Zita Andrijonienė, Head of the Decorations Division of the Office of the President of the Republic and Judita Kaminskienė, chief specialist on legal issues of the Office of the President of the Republic, as well as additional explanations were received from the representatives of the President of the Republic, the party concerned, who were Darius Vilimas, advisor of the President of the Republic, and Judita Kaminskienė. It is stated in the said explanations that at the time when the President of the Republic awarded the Medal of Darius and Girėnas to J. Borisov by the impugned decree, he had no information which would show disloyalty of this person to the State of Lithuania, meanwhile, the support of J. Borisov to the Lithuanian aviation sport was obvious; moreover, the said award of the state was granted to J. Borisov under the procedure established by the Law. In the opinion of the representatives of the party concerned, the impugned decree (to the specified extent) of the President of the Republic is not in conflict with the Constitution, neither was it in conflict with Article 128 of the Law which was in effect at the time of issuance of the said decree.

IV

In the course of the preparation of the case for the judicial consideration, the witnesses, who were A. Karpavičius, R. Kurtinaitis, V. Lapėnas, S. Murza, A. Meškauskas, G. Šurkus and A. Žentelis, were questioned. Inter alia, it is obvious from the testimony (as well as from other case material) of the witnesses that before the President of the Republic awarded the Medal of Darius and Girėnas to J. Borisov, the enterprise headed by J. Borisov had allocated funds to or had supported otherwise the Lithuanian Aviation Club, the Lithuanian team of acrobatic flying which represented Lithuania in international (European, world) competitions, the aeronauts G. Šurkus and V. Machnorilovas who flew across the Baltic Sea by air balloon, the public establishment “Vytauto Lapėno skraidymo mokykla”, etc.

Some of the said persons (R. Kurtinaitis and S. Murza) also submitted written explanations.

V

In the course of the preparation of the case for the judicial consideration, a statement from J. Borisov was received, by which he informed that no other circumstances of his award by the Medal of Darius and Girėnas are known to him, except for the fact that he was invited to the Office of the President of the Republic where he was granted the said award.

VI

1. In the course of the preparation of the case for the judicial consideration, a letter (with annexes) from A. Valantinas, the Prosecutor General, was received wherein the information was provided about the inspection of the activity of the aviation company “Avia Baltika” UAB carried out by the officials of law and order and about the criminal cases instituted (which were dismissed later) regarding the activity of this enterprise.

2. A letter from V. Latvienė, Head of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania, was also received, wherein information is provided about the charity and support provided to various subjects (enterprises, organisations) by the aviation company “Avia Baltika” UAB during the years 1996–2002.

3. A note from the Lithuanian Aviation Club was also received, which provides information about the funds which were allocated to the Lithuanian Aviation Club by the aviation company “Avia Baltika” UAB.

VII

In the course of the preparation of the case for the judicial consideration, the representatives of the group of members of the Seimas, the petitioner, who were P. Gražulis, a member of the Seimas, and S. Buškevičius, were questioned (on 22 June 2006).

1. The representatives of the group of members of the Seimas, the petitioner, who were P. Gražulis, a member of the Seimas and S. Buškevičius submitted, inter alia, the following explanations regarding the arguments of the petition of the petitioner and the reasoning of the application of the group of members of the Seimas, the petitioner, to the Constitutional Court.

1.1. The petitioner does not impugn that J. Borisov had allocated some funds and supported the Lithuanian aviation sport in other way before the President of the Republic awarded him the Medal of Darius and Girėnas.

1.2. The legal regulation established in the Law was not clear, thus, it was not in line with the Constitution, as the Law did not establish any criteria, under which it would be possible to decide what merits to the Lithuanian aviation should be regarded as particularly special so that it would be possible to award a person with the Medal of Darius and Girėnas for such merits. In this aspect, the Law was deficient. In general, when state awards are granted to persons, “there is chaos”, they are granted to “all those who want them”; in Lithuania the practice of granting awards has become established where not “people with merits”, but mostly “the good people” are awarded. However, in order that a person is granted a state award, the fact that he has provided somebody with financial and material support (even if it is big) is not enough.

1.3. Formally, taking account only of the legal criteria, awarding J. Borisov with the Medal of Darius and Girėnas maybe was “fair”, but assessing it in a wider context, it was doubtful from the moral and political aspects. Such assessment of the said award is based, inter alia, on the fact that the Constitutional Court has presented the conclusion (the Constitutional Court’s conclusion of 31 March 2004) that the actions of President Rolandas Paksas of the Republic of Lithuania, when he (by the Decree (No. 40) “On Granting Citizenship of the Republic of Lithuania by Way of Exception” of 11 April 2003) granted citizenship of the Republic of Lithuania to Jurij Borisov, grossly violated the Constitution. According to the representatives of the petitioner, if such conclusion had not been presented, the members of the Seimas (as well as the representatives of the petitioner) perhaps would not have doubted the loyalty of J. Borisov to the State of Lithuania, as well as the compliance of the impugned decree of the President of the Republic with the Constitution and with Article 128 of the Law.

1.4. In society, J. Borisov is regarded as “particularly dangerous to our state” and the one who “has no reputation”, it is thought that he “has discredited himself”, as (while defending not the interests of Lithuania, but those of Russia) he “put huge pressure <…> on the President of the Republic Rolandas Paksas”. J. Borisov has not been, nor is loyal to the Republic of Lithuania. It is also shown by the criminal cases, which had been instituted against the aviation company “Avia Baltika” UAB headed by the said person, of which the President of the Republic did not take any account when awarding the said person the Medal of Darius and Girėnas. Neither did the President of the Republic take account of “other facts”. The representatives of the petitioner could not specify what are those “other facts”, of which, in their opinion, the President of the Republic Valdas Adamkus had to take account while deciding on granting the said state award to Borisov, but of which he had not taken any account.

1.5. The representatives of the petitioner asserted that awarding J. Borisov with the Medal of Darius and Girėnas, “was actually a political question” and they could prove that. By awarding the Medal of Darius and Girėnas to J. Borisov, the Constitution was grossly violated. Such assessment is based, inter alia, on the fact that, according to the representatives of the petitioner, “people are talking” that, allegedly, the enterprise headed by J. Borisov had transferred quite an amount of money to the Valdas Adamkus foundation and that, allegedly, the said state award was granted to J. Borisov not for the support to the Lithuanian aviation, but for the support to V. Adamkus during the election of the President of the Republic. Thus, after he awarded the Medal of Darius and Girėnas to J. Borisov, the President of the Republic V. Adamkus should be regarded as one who has grossly violated the Constitution.

2. During the questioning at the Constitutional Court the representatives of the petitioner did not present any arguments that the President of the Republic was familiar with the fact that J. Borisov or the aviation company “Avia Baltika” UAB headed by him, “were known to the officials of law and order”, that the enterprise headed by J. Borisov had transferred any money to the Valdas Adamkus foundation and that the said state award was granted to J. Borisov for the support to V. Adamkus during the election of the President of the Republic. Nor were any explanations presented about what were the “other facts” which are specified in the petition of the petitioner and which were specified by the representatives of the petitioner, of which the President of the Republic V. Adamkus, while deciding on granting the said state award to J. Borisov, had to take account, but which he failed to do.

3. The representatives of the petitioner undertook an obligation to present additional explanations in writing (till 31 July 2006), which would include, inter alia, the said arguments. Such additional explanations have not been presented to the Constitutional Court. The representatives of the petitioner informed by telephone that the said evidence would not be presented.

VIII

1. In the course of the preparation of the case for the judicial consideration written explanations from the representatives of the state institutions, who were G. Švedas, Vice-minister of Justice, and A. Raslanas, Deputy Director General of the Department of Physical Education and Sports under the Government of the Republic of Lithuania, were received.

2. In the course of the preparation of the case for the judicial consideration written explanations from the specialists Assoc. Prof. Dr. G. Mesonis, acting Head of the Constitutional Law Department of the Faculty of Law of Mykolas Romeris University and Assoc. Prof. Dr. E. Šileikis of the Constitutional and Administrative Law Department of the Faculty of Law of Vilnius University were also received.

IX

In the course of the preparation of the case for the judicial consideration, on 22 December 2006, additional information was received from Judita Kaminskienė and Darius Vilimas, the representatives of the President of the Republic, the party concerned, regarding the fact that on 22 December 2006, the President of the Republic issued the Decree (No. 1K-838) “On Crossing out the Persons Awarded with Medals of the State of Lithuania from the List of the Awarded Persons”, Article 2 of which amended the Decree of the President of the Republic of Lithuania (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001 by crossing out J. Borisov from the list of persons awarded the Medals of Darius and Girėnas, as he committed an intentional crime, by which he discredited the name of the awarded person. The Decree of the President of the Republic (No. 1K-838) “On Crossing out the Persons Awarded with Medals of the State of Lithuania from the List of the Awarded Persons” of 22 December 2006 was published in the official gazette “Valstybės žinios” on 28 December 2006.

The Constitutional Court

holds that:

I

1. The petitioner requests an investigation into whether Article 1 of the Decree of the President of the Republic (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas, is not in conflict with the Constitution and whether this Decree of the President of the Republic, to the specified extent, was not in conflict with Article 128 of the Law on Orders, Medals and other Decorations.

2. The petitioner does not specify any concrete provisions (norms, principles) of the Constitution, with which, in his opinion, the impugned decree of the President of the Republic (to the specified extent) is in conflict.

3. On 12 September 1991, the Supreme Council of the Republic of Lithuania adopted the Law on Orders, Medals and other Decorations. Article 124 of the Law prescribed that this law shall come into force as from the day of its adoption.

3.1. The Law (wording of 12 September 1991) did not include Article 128; the Medal of Darius and Girėnas was not provided for in this law, neither was it provided in other laws which were then in effect.

3.2. The Law was amended and supplemented by the Republic of Lithuania’s Law “On Establishing the Commemorative Medal of January 13 and on Amending and Supplementing the Republic of Lithuania’s Law on Orders, Medals and other Decorations”, which was adopted by the Supreme Council on 18 December 1991. Under Item 6 of Article II of this law, Article 123 (wording of 12 September 1991) of the Law on Orders, Medals and other Decorations became Article 128 (wording of 18 December 1991). The Law “On Establishing the Commemorative Medal of January 13 and on Amending and Supplementing the Republic of Lithuania’s Law on Orders, Medals and other Decorations” did not establish the Medal of Darius and Girėnas.

3.3. On 1 July 1993, the Seimas adopted the Republic of Lithuania’s Law “On Establishing the Medal of Darius and Girėnas and on Amending and Supplementing the Republic of Lithuania’s Law on Orders, Medals and other Decorations”, Article I of which established the Medal of Darius and Girėnas and Item 6 of Article II whereof supplemented the Law (wording of 12 September 1991 with amendments and supplements made by the Law “On Establishing the Commemorative Medal of January 13 and on Amending and Supplementing the Republic of Lithuania’s Law on Orders, Medals and other Decorations”, which was adopted by the Supreme Council on 18 December 1991) with Chapter XX titled “The Statute for the Medal of Darius and Girėnas”. Article 128 of this chapter was set forth as follows: “The Medal of Darius and Girėnas shall be established in order to commemorate the flight over the Atlantic made by Steponas Darius and Stasys Girėnas in 1933 and shall be granted in order to honour the persons who are with special merits to the Lithuanian aviation”.

3.4. The Law (wording of 12 September 1991 with subsequent amendments and supplements) has been amended and/or supplemented by the Republic of Lithuania’s Law on Supplementing Article 133 of the Law on Orders, Medals and other Decorations, which was adopted by the Seimas on 3 July 1997, the Republic of Lithuania’s Law on Supplementing Article 91 of the Law on Orders, Medals and other Decorations, which was adopted by the Seimas on 5 November 1998, and the Republic of Lithuania’s Law on Amending Articles 95, 96 and 97 of the Law on Orders, Medals and other Decorations, however, Article 128 (wording of 1 July 1993) whereof has not been amended and/or supplemented.

3.5. On 18 June 2002, the Seimas adopted the Republic of Lithuania’s Law on State Awards. Article 45 whereof prescribed that this law shall come into force upon confirmation of the standards of the state orders, medals and other decorations (Item 1), the manner of wearing state orders, medals and other decorations (Item 2), the Regulations of the State Awards Council (Item 3) and the Regulations of the Chancellor of Orders of the State of Lithuania (Item 4) by the President of the Republic.

By Article 1 of the Decree (No. 2026) “On the Confirmation of the Projects and Drawings, the Standards and Substitutes of the Awards of the State of Lithuania, the Rules of Wearing State Awards, the Regulations of the Lithuanian State Awards Council and the Regulations of the Chancellor of Orders of the State of Lithuania” of 16 January 2003 the President of the Republic confirmed the projects and drawings, the standards and substitutes of the awards of the State of Lithuania (Item 1), the rules of wearing state awards (Item 2), the Regulations of the State Awards Council (Item 3) and the Regulations of the Chancellor of Orders of the State of Lithuania (Item 4). Article 3 of the said decree of the President of the Republic prescribed that it shall come into force as from the day of its signing. In this context, it needs to be noted that the Decree (No. 2026) “On the Confirmation of the Projects and Drawings, the Standards and Substitutes of the Awards of the State of Lithuania, the Rules of Wearing State Awards, the Regulations of the Lithuanian State Awards Council and the Regulations of the Chancellor of Orders of the State of Lithuania” of 16 January 2003 of the President of the Republic was officially published in the official gazette “Valstybės žinios” on 24 January 2003.

Paragraph 2 of Article 7 of the Constitution prescribes that only laws which are published shall be valid. While construing this constitutional provision, the Constitutional Court has held that “the constitutional principle that law may not be non-public is reflected in Paragraph 2 of Article 7 of the Constitution. Thus, taking account of the constitutional requirement that law may not be non-public, the notion ‘laws’ which is employed in Paragraph 2 of Article 7 of the Constitution should not be construed only literally. It should be construed in an expanding manner, as a notion that includes not only legal acts, which have the force of a law, but also other legal acts” (the Constitutional Court’s ruling of 29 October 2003), thus, also the decrees of the President of the Republic. In its ruling of 11 January 2001, the Constitutional Court held that the official publication of laws in pursuance with the procedure established in the Constitution and laws is a necessary condition so that laws be valid and that subjects of legal relations should know as to what laws are valid, what their content is, and that they might follow these laws.

Taking account of the provision of Paragraph 2 of Article 7 of the Constitution that only laws which are published shall be valid and of the fact that by following the general legal principle (which is entrenched in the Constitution) lex retro non agit the legal force of legal acts must only be prospective (save the cases allowed by the general legal principle lex benignior retro agit), it needs to be held that the application of the provisions of the Decree of the President of the Republic (No. 2026) “On the Confirmation of the Projects and Drawings, the Standards and Substitutes of the Awards of the State of Lithuania, the Rules of Wearing State Awards, the Regulations of the Lithuanian State Awards Council and the Regulations of the Chancellor of Orders of the State of Lithuania” of 16 January 2003 (and of the legal acts confirmed by it—constituent parts of this decree) could be started only as from 24 January 2003, when this decree of the President of the Republic was published in the official gazette “Valstybės žinios”.

Thus, the application of the provisions of the Law on State Awards could be started only as from 24 January 2003 and the said provisions could not be applied to any relations that had appeared till that day.

It needs also to be mentioned that, as the Constitutional Court held in its ruling of 29 October 2003, under the Constitution, the Government by its resolutions may not establish any such legal regulation, whereby the time of entry into force of a resolution or its becoming no longer valid would depend on the entry into force of a legal act of lower legal force, which is adopted by another subject. This doctrinal provision formulated in the Constitutional Court’s ruling of 29 October 2003 should be construed as expressing a general constitutional imperative that the time of entry into force of a legal act of higher legal force or its becoming no longer valid should not, nor may be made dependent on the time of entry into force of a legal act of lower legal force or of its becoming no longer valid, etc. Thus, one neither should nor may make the time of entry into force of a law dependent on a decree of the President of the Republic, i.e., on the issuance of a legal act of lower legal force and its entry into force.

It also needs to be noted that neither the time of the adoption, official publication and entry into force of both the Decree of the President of the Republic (No. 2026) “On the Confirmation of the Projects and Drawings, the Standards and Substitutes of the Awards of the State of Lithuania, the Rules of Wearing State Awards, the Regulations of the Lithuanian State Awards Council and the Regulations of the Chancellor of Orders of the State of Lithuania” of 16 January 2003 and the Law on State Awards, nor the date of the beginning of the application of these legal acts or other circumstances related to that are the matter of the dispute in the constitutional justice case at issue.

3.6. After the Law on State Awards had come into force, the Law on Orders, Medals and other Decorations (wording of 12 September 1991 with subsequent amendments and supplements) became no longer valid (Article 44 of the Law on State Awards).

3.7. Under Article 4 of the Law on State Awards, state awards are orders, medals and other decorations (enumerated precisely in this article) granted by a decree of the President of the Republic. The Medal of Darius and Girėnas is bestowed not by the President of the Republic, but by the Minister of National Defence and the Minister of Transport and Communications (Article 43 of the Law on State Awards). Thus, under the now valid legal regulation, the Medal of Darius and Girėnas is not a state award. This provision may not be applied to the awards with the Medal of Darius and Girėnas which were granted under the Law on Orders, Medals and other Decorations (wording of 12 September 1991 with subsequent amendments and supplements) which had been valid before the entry into force of the Law on State Awards.

II

1. Under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing references to laws. In the opposite case the petition should be returned to the petitioner (Article 70 of the Law on the Constitutional Court).

2. Under Paragraph 3 of Article 34 of the Law on the Constitutional Court, each party to the case must prove the circumstances on the basis of which they make their requests and retorts. Paragraph 4 of this article prescribes, inter alia, that parties to the case shall present evidence, that the Court may propose that they present additional evidence and that the Court shall accept only that evidence for investigation which confirms circumstances that are of importance to the case.

3. Under Item 5 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 petition is grounded on non-legal reasoning.

III

1. The petitioner (if one has in mind, inter alia, the explanations of the member of the Seimas P. Gražulis and Š. Buškevičius provided during the questioning at the Constitutional Court) assesses negatively all the practice of granting state awards which is established in Lithuania, and, according to him, when state awards to persons are granted, “there is chaos”, they are granted to “all those who want them”, mostly to “the good people”. In the opinion of the petitioner, the Law on Orders, Medals and other Decorations, which was deficient, created the conditions for the formation of such practice. In the context of the problem at issue (regarding the granting of the state award to J. Borisov), it should be noted that the petitioner (his representatives) assesses the provisions of the Law regarding awarding the Medal of Darius and Girėnas critically; in the opinion of the petitioner, those provisions were unclear and not in line with the Constitution, as the Law did not establish any criteria, under which it would be possible to decide what merits to the Lithuanian aviation should be regarded as particularly special so that it would be possible to award a person the Medal of Darius and Girėnas for them.

In this context, it needs to be noted that the petitioner does not request the Constitutional Court to investigate the compliance of any of the provisions of the Law with the Constitution.

2. The position of the petitioner (particularly having taken account of the explanations of the member of the Seimas P. Gražulis and S. Buškevičius provided during the questioning at the Constitutional Court) on the compliance of Article 1 of the impugned the Decree of the President of the Republic (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas with the Constitution and Article 128 (wording of 1 July 1993) of the Law is based on, inter alia, the following arguments.

According to the petitioner, the aviation company “Avia Baltika” UAB, headed by Jurij Borisov, “has been known to the officials of law and order” since 1997; according to P. Gražulis and S. Buškevičius, the representatives of the petitioner, J. Borisov has not been, nor is loyal to the Republic of Lithuania—he is regarded in society as “particularly dangerous to our state” and “has no reputation”, it is thought that he “has discredited himself”.

Thus, in the opinion of the petitioner (his representatives), a person who was not loyal to the Republic of Lithuania was awarded the Medal of Darius and Girėnas; he was awarded this medal only for his financial support for the sport of aeronautics, without taking account of the fact that the enterprise headed by this person “has been known to the officials of law and order”, as well as of “other facts”; formally (according to law) the President of the Republic was probably right granting the Medal of Darius and Girėnas to J. Borisov for the financial support to the Lithuanian aviation, however, he was not right because of the moral and political reasons.

Such arguments of the petitioner (his representatives) should be regarded as arguments of expediency: it is not that the question of lawfulness (constitutionality) of the implementation of the powers of the President of the Republic to grant state awards is raised, but it is questioned whether in this case it was expedient (in the moral and political aspects) to implement the said powers of the President of the Republic.

3. Moreover, the position of the petitioner (his representatives) is based on various assumptions and sometimes on illogical reasoning:

3.1. Thus, the petitioner (his representatives) states that the President of the Republic did not take account of the following facts which took place already after the decree of the President of the Republic was issued on 14 June 2001, by which, inter alia, J. Borisov was awarded with the Medal of Darius and Girėnas (as well as that he did not take account of corresponding legal acts, which were issued later than the impugned decree of the President of the Republic), though, allegedly, he had to take account of such facts:

the criminal cases regarding the activity of the aviation company “Avia Baltika” UAB, headed by Jurij Borisov, which, according to the petitioner (his representatives), were instituted “on 22 March 2002 and 4 November 2002”;

the Decree of the President of the Republic R. Paksas (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception and of the Constitutional Court’s conclusion of 31 March 2004 (On the compliance of actions of President Rolandas Paksas of the Republic of Lithuania against whom an Impeachment case has been Instituted with the Constitution of the Republic of Lithuania), that the President of the Republic R. Paksas by his actions granting citizenship of the Republic of Lithuania to J. Borisov by way of exception, grossly violated the Constitution.

Heed should be paid to the fact that, according to the representatives of the petitioner, the member of the Seimas P. Gražulis and S. Buškevičius, if this Constitutional Court’s conclusion had not been presented, the members of the Seimas (as well as the representatives of the petitioner) perhaps would not have doubted the compliance of the impugned decree of the President of the Republic with the Constitution and Article 128 of the Law.

In this context, it should be emphasised that this petition of the petitioner was received at the Constitutional Court on 27 February 2003, thus, even before the said Constitutional Court’s conclusion was presented.

3.2. According to the petitioner, while deciding on granting the said state award to J. Borisov, the President of the Republic Valdas Adamkus had to take account not only of the fact that, according to the petitioner, the criminal cases had been instituted regarding the activity of the aviation company “Avia Baltika” UAB headed by the J. Borisov on 22 March 2002 and 4 November 2002 (i.e. already after J. Borisov had been granted the Medal of Darius and Girėnas by the impugned decree of the President of the Republic), but also of “other facts”, however, he did not do that.

The petitioner (his representatives), upon the proposition of the Constitutional Court, did not explain what are those “other facts”, nor presented any evidence that the President of the Republic knew about the fact that J. Borisov or the enterprise headed by this person “has been known to the officials of law and order”.

3.3. In the opinion of the petitioner (his representatives), if the President of the Republic had taken account of these circumstances, inter alia, the said “other facts”, the state award would not have been granted to J. Borisov, a person who is disloyal to the Republic of Lithuania. However, as J. Borisov was nevertheless awarded with the Medal of Darius and Girėnas by the impugned decree of the President of the Republic, the petitioner (his representatives) makes an assumption that the said state award was granted to J. Borisov for his support to Valdas Adamkus during the election of the President of the Republic. Such assumption is based on the fact that, according to the representatives of the petitioner, the member of the Seimas P. Gražulis and S. Buškevičius, “people are talking” that, allegedly, the enterprise headed by J. Borisov had transferred quite an amount of money to the President of the Republic Valdas Adamkus foundation.

Therefore, according to the petitioner (his representatives), the President of the Republic Valdas Adamkus, who has granted the Medal of Darius and Girėnas to J. Borisov, should be regarded as one who has grossly violated the Constitution.

It needs to be emphasised that the petitioner (his representatives) did not present any evidence that the enterprise headed by J. Borisov had transferred quite an amount of money to the President of the Republic Valdas Adamkus foundation or that the said state award had been granted to J. Borisov for his support to V. Adamkus during the election of the President of the Republic, or that J. Borisov supported V. Adamkus in general.

3.4. All the arguments (assumptions) of the petitioner (his representatives) which were mentioned here, particularly taking account of the fact that no evidence is presented, should be assessed critically.

In this context, it should be noted that, under Article 34 of the Law on the Constitutional Court, each party to the case must present evidence and prove the circumstances on the basis of which they make their requests.

4. Thus, as it came to light in the course of the preparation of the case for the judicial consideration, the petition of the petitioner requesting an investigation into whether Article 1 of the Decree of the President of the Republic of Lithuania (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas, is not in conflict with the Constitution and whether this Decree of the President of the Republic, to the specified extent, was not in conflict with Article 128 of the Law on Orders, Medals and other Decorations, is based not on legal, but other arguments.

5. A case subsequent to the petition which is based not on legal reasoning and which is based on assumptions not supported by evidence may not be investigated at the Constitutional Court, as such a petition of the petitioner is not in line with the requirements of the Law on the Constitutional Court, inter alia, Item 5 of Paragraph 1 of Article 69 thereof (under which, as mentioned before, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition is grounded on non-legal reasoning).

6. In the context of the constitutional justice case at issue, it should also be noted that, on 22 December 2006, the President of the Republic issued the Decree (No. 1K-838) “On Crossing out the Persons Awarded with Medals of the State of Lithuania from the List of the Awarded Persons”, Article 2 whereof established:

Pursuant to Paragraph 1 of Article 18 of the Republic of Lithuania’s Law on State Awards and taking account of the advice of the State Awards Council,

I shall amend the Decree (No. 1373) ‘On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)’ of 14 June 2001 by crossing out Jurij BORISOV from the list of the persons awarded the Medals of Darius and Girėnas, as the intentional crime committed by him (the ruling of the Supreme Court of Lithuania of 18 October 2005) discredits the name of the awarded person.”

On 28 December 2006, this decree was published in the official gazette “Valstybės žinios”.

7. Paragraph 4 of Article 69 of the Law on the Constitutional Court prescribes that the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. If it becomes clear before the beginning of the Court hearing, the Constitutional Court shall decide this question in the deliberation room.

The Constitutional Court has more than once held in its acts that the formula “shall be grounds <…> to dismiss the instituted legal proceedings” should be construed as establishing the powers of the Constitutional Court in the cases when not courts, but the other subjects specified in Article 106 of the Constitution applied to the Constitutional Court, to dismiss the instituted legal proceedings.

8. Taking account of the arguments set forth, as well as of the fact that under the Decree of the President of the Republic (No. 1K-838) “On Crossing out the Persons Awarded with Medals of the State of Lithuania from the List of the Awarded Persons” of 22 December 2006 J. Borisov was crossed out from the list of persons awarded the Medal of Darius and Girėnas, thus, he lost the said award, the legal proceedings in the case subsequent to the petition of the group of members of the Seimas, the petitioner, requesting an investigation into whether Article 1 of the Decree of the President of the Republic (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas, is not in conflict with the Constitution and whether this decree of the President of the Republic, to the specified extent, was not in conflict with Article 128 of the Law on Orders, Medals and other Decorations, must be dismissed.

Conforming Article 28, Paragraphs 3 and 4 of Article 34 and Item 5 of Paragraph 1, Paragraph 2 and Paragraph 4 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 dismiss the instituted legal proceedings in the case subsequent to the petition of the group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Article 1 of Decree of the President of the Republic No. 1373 “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001 (Official gazette Valstybės žinios, 2001, No. 57-2029), to the extent that it prescribes that Jurij Borisov—the President of the joint-stock company “Avia Baltika” and a supporter of Lithuanian aviators—is awarded the Medal of Darius and Girėnas, is not in conflict with the Constitution of the Republic of Lithuania and whether this decree of the President of the Republic, to the specified extent, was not in conflict with Article 128 of the Republic of Lithuania’s Law on Orders, Medals and other Decorations.

Justices of the Constitutional Court:          Armanas Abramavičius

                                                                               Toma Birmontienė

                                                                               Kęstutis Lapinskas

                                                                               Zenonas Namavičius

                                                                               Ramutė Ruškytė

                                                                               Vytautas Sinkevičius

                                                                               Stasys Stačiokas

                                                                               Romualdas Kęstutis Urbaitis