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On court precedents and on lodging complaints against court rulings whereby one applies to the Constitutional Court or an administrative court

Case No. 26/07

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF ARTICLES 4 AND 165 (WORDING OF 28 FEBRUARY 2002) OF THE CODE OF CIVIL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

24 October 2007

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Seimas member Julius Sabatauskas, and Gediminas Sagatys, Senior Advisor of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas 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 23 October 2007, considered constitutional justice case No. 26/07 subsequent to the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Articles 4 and 165 (wording of 28 February 2002) of the Code of Civil Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Vilnius Regional Court, the petitioner, considered a civil case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 4 and 165 (wording of 28 February 2002) of the Code of Civil Procedure (hereinafter also referred to as the CCP) are not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

II

The petition of the Vilnius Regional Court, the petitioner, is grounded on the following arguments.

1. Article 4 (wording of 28 February 2002) of the CCP obligates courts, when they apply law, to take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure and pronounced under procedure of the Republic of Lithuania’s Law on Courts. According to the petitioner, this provision obligates courts to take account of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure, and it does not obligate the courts to take account of the entire practice of courts of general jurisdiction—these courts do not have a duty to take account of those court decisions (rulings) which were adopted under non-cassation procedure. By making reference to the jurisprudence of the Constitutional Court, it is maintained in the petition of the petitioner that the constitutional principle of a state under the rule of law implies the continuity of jurisprudence, that the system of courts of general jurisdiction consolidated in the Constitution must function so that preconditions might be created for formation of the uniform (regular, consistent) practice of courts of general jurisdiction; the same (analogous) cases should be decided in the same manner, i.e. by heeding the established precedents; while adopting decisions in cases of corresponding categories, courts are bound by the precedents—decisions in analogous cases—that they have created by themselves. According to the petitioner, the fact that courts are obligated to take account of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure, but not all practice of courts of general jurisdiction, might be in conflict with the constitutional principles of justice, the equality of persons before the law and the court, thus, with Paragraph 1 of Article 29 and Article 109 (inter alia, Paragraph 1 thereof) of the Constitution.

2. Article 165 (wording of 28 February 2002) of the CCP prohibits lodging a separate complaint regarding a court ruling, whereby the corresponding case was suspended due to the application to the Constitutional Court or an administrative court. Because of the suspension of the case, its consideration might become protracted therefore, according to the petitioner, there should always be a possibility of reviewing such rulings in courts of higher instance in the aspect of the lawfulness and reasonableness of such rulings. The fact that the CCP does not limit the right to lodge a complaint where the case is suspended under Item 9 of Article 163 of the CCP, i.e. when the court applies to a competent institution of the European Union (hereinafter referred to as the EU), leads one to believe that the prohibition on making use of the right to lodge a complaint against the court ruling regarding the suspension of a case might be in conflict with the constitutional principles of a state under the rule of law, justice, the equality of persons before the law and the court. In addition, while ensuring the right of the person to lodge a complaint against the court ruling regarding suspension of the case and thus creating the conditions so that the participants to the proceedings could achieve annulment of an unlawful or unreasonable ruling regarding the suspension of the case by the court of higher instance, one would implement the right of the person entrenched in Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms whereby his case must be heard fairly and in public within a reasonable time by an independent and impartial tribunal established by law.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Seimas member J. Sabatauskas and G. Sagatys, in which it is maintained that Articles 4 and 165 (wording of 28 February 2002) of the CCP are not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution. The position of the representatives of the party concerned, the Seimas, is grounded on the following arguments.

1. In the opinion of the representatives of the party concerned, in Lithuania the primary source of law is a legal act in which the legal norm is set forth, but not an act of construction of this legal norm. Therefore, the impugned provision of Article 4 (wording of 28 February 2002) of the CCP does not mean that one must a priori follow the construction of the application of law which is contained in the pronounced rulings adopted under cassation procedure and it does not give it the legal force of a law or that of a government resolution. The doubts of the petitioner regarding the compliance of Article 4 (wording of 28 February 2002) of the CCP with the Constitution are grounded on imprecise interpretation of the said article. The purpose of the impugned provision is not to present an exhaustive or exemplary list of sources of law, but emphasise the need to form the uniform practice of application of law in the entire country (this is evident form the title of the article); it is impossible to construe the provision consolidated in this article narrowly, as the one which, purportedly, presents a final list of secondary sources of law (practice of courts), which is taken account of by the court considering a case. Quite to the contrary, the impugned provision, while granting the status of a source of law to the construction of the application of law which is contained in those rulings which were adopted under cassation procedure and pronounced under procedure established in the Law on Courts, does not eliminate other secondary sources of law, which are taken account of by the court considering a case, i.e. it does not eliminate the decisions made by the court itself in analogous cases and decisions of courts of higher instance in cases of the corresponding category. In case the impugned provision was construed as obligating the courts to take account of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure, the conclusion would have to be drawn that, when considering cases, courts of general jurisdiction do not take account of the official constitutional doctrine formed in acts of the Constitutional Court, nor the practice of EU judicial institutions, nor judgments of the European Court of Human Rights. Such comprehension of the practice of courts—one of the secondary sources of law—would be incompatible with the hierarchy of legal acts stemming from the Constitution.

In the opinion of the representatives of the party concerned, the impugned provision of the law and the official constitutional doctrine on formation of the uniform practice of courts, which was formed in the jurisprudence of the Constitutional Court, are in harmony with and supplement each other: the former consolidates the function of the Supreme Court of Lithuania in forming the uniform court practice in the entire country, while the latter guarantees the self-binding by all courts of general jurisdiction, which adopt decisions in cases of corresponding categories, by their own decisions in analogous cases, as well as the binding of courts of general jurisdiction of lower instance, which adopt decisions in cases of corresponding categories, by decisions of courts of general jurisdiction of higher instance.

2. At the junction of several constitutional values the legislature has a duty to establish their reasonable balance, therefore, when assessing the constitutionality of the prohibition consolidated in Article 165 (wording of 28 February 2002) of the CCP against lodging a separate complaint regarding a court ruling, whereby the corresponding case was suspended due to the application to the Constitutional Court or an administrative court, one must assess the place of the constitutional right of a person to a speedy process in the system of other constitutional values. The legal regulation consolidated in the impugned provision and other provisions related with it reflects the model of constitutional justice (constitutional judicial control) consolidated in the Constitution, the powers of the Constitutional Court and other courts in ensuring that one should heed the hierarchy of legal acts arising from the Constitution and that no legal acts which are in conflict with legal acts of higher legal force be applied. Applications to the Constitutional Court made by courts are special ones also because of the fact that the courts which have doubts as to the compliance of a legal act (part thereof) issued by the Seimas, the President of the Republic or the Government or adopted by referendum with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, not only may, but also must apply to the Constitutional Court. The right of the court to apply to the Constitutional Court in order to ascertain whether the law or other legal act applicable in the corresponding case is not in conflict with the Constitution (either to confirm or negate the existing doubts), is an important part of the court procedural independence. It is impossible to interpret the instance system of courts of general jurisdiction, which stems from the Constitution, as restricting the procedural independence of courts of general jurisdiction of lower courts, while the right of the person to a speedy judicial process cannot overshadow other constitutional values, like justice, independence of courts, hierarchy of legal acts etc. The impugned provision of Article 165 (wording of 28 February 2002) of the CCP precisely ensures such balance of constitutional values.

IV

At the Constitutional Court’s hearing, Seimas member J. Sabatauskas and G. Sagatys, the representatives of the Seimas, the party concerned, virtually reiterated the arguments set forth in their written explanations and presented additional explanations.

The Constitutional Court

holds that:

I

On the compliance of Article 4 (wording of 28 February 2002) of the CCP with Paragraph 1 of Article 29 and Article 109 of the Constitution.

1. The Vilnius Regional Court, the petitioner, requests an investigation into whether Article 4 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

2. Article 4 (wording of 28 February 2002) of the CCP provides: “The courts, when they apply law, shall take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure and pronounced under procedure of the Republic of Lithuania’s Law on Courts.”

3. The doubts of the Vilnius Regional Court, the petitioner, regarding the compliance of Article 4 (wording of 28 February 2002) of the CCP with the Constitution are grounded on the fact that, in the opinion of the petitioner, according to this article, the courts, when they apply law, have to take account of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure, and that they do not have a duty to take account of those court decisions (rulings) which were adopted under non-cassation procedure. The petitioner does not impugn the legal regulation established in the Law on Courts, which is referred to in this article; the said legal regulation is not a matter of investigation in the constitutional justice case at issue.

Subsequent to the petition of the Vilnius Regional Court, the petitioner, the Constitutional Court will investigate whether the provision “the courts, when they apply law, shall take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure” of Article 4 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

4. It needs to be mentioned that the legal regulation, which is analogous to the one consolidated in Article 4 (wording of 28 February 2002) of the CCP, is also consolidated in other laws (the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, the Law on Courts), however, the constitutionality of the provisions of these laws is not impugned, therefore, the corresponding legal regulation is not a matter of investigation in the constitutional justice case at issue.

5. Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials.

6. Article 109 of the Constitution provides that in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1); while administering justice, the judge and courts shall be independent (Paragraph 2); when considering cases, judges shall obey only the law (Paragraph 3); the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4).

7. While reasoning, in the petition of the petitioner, the position regarding the compliance of the impugned provision of Article 4 (wording of 28 February 2002) of the CCP with the Constitution, one substantiates the reasoning by the provisions of the official constitutional doctrine, which were set forth in the Constitutional Court’s ruling of 28 March 2006.

It needs to be noted that some of these provisions were set forth in the acts of the Constitutional Court that had been adopted in the constitutional justice cases considered even before the latter ruling.

8. In this context, the following provisions of the official constitutional doctrine of the Constitutional Court’s ruling of 28 March 2006 should be mentioned.

The principle of a state under the rule of law entrenched in the Constitution implies continuity of jurisprudence. The instance system of courts of general jurisdiction established in the Constitution must function so that the preconditions are created to form the uniform (regular, consistent) practice of courts of general jurisdiction, i.e. such, which would be based on the principles of a state under the rule of law, justice, equality of all persons before the law (and other constitutional principles) enshrined in the Constitution, on the maxim inseparably linked with the said principles and arising from them that the same (analogous) cases must be decided in the same way, i.e. they have to be decided not by creating new court precedents, competing with the existing ones, but by taking account of the already consolidated ones. When ensuring the uniformity (regularity, consistency) of the practice of courts of general jurisdiction, which arises from the Constitution, thus, also the continuity of the jurisprudence, the following factors (along with other important factors) are of crucial importance: the courts of general jurisdiction, when adopting decisions in cases of corresponding categories, are bound by their own created precedents—decisions in the analogous cases; the courts of general jurisdiction of lower instance, when adopting decisions in the cases of corresponding categories, are bound by the decisions of the courts of general jurisdiction of higher instance—precedents in the cases of the same categories; the courts of general jurisdiction of higher instance, while revising decisions of the courts of general jurisdiction of lower instance, must assess these decisions by always following the same legal criteria; these criteria must be clear and known ex ante to the subjects of law, inter alia, to the courts of general jurisdiction of lower instance (thus, the jurisprudence of courts of general jurisdiction must be predictable). The already existing precedents in cases of corresponding categories, which were created by courts of general jurisdiction of higher instance, not only are binding on the courts of general jurisdiction of lower instance that adopt decisions in analogous cases, but also the courts of general jurisdiction of higher instance that created those precedents (inter alia, the Court of Appeal of Lithuania and the Supreme Court of Lithuania). Courts have to follow such concept of the content of corresponding provisions (norms, principles) of law, also of the application of these provisions of law, which was formed and which was followed when applying these provisions (norms, principles) in the previous cases, inter alia, when previously deciding analogous cases. Disregarding the maxim that the same (analogous) cases have to be decided in the same way, which arises from the Constitution, would also mean disregarding the provisions of the Constitution on administration of justice, that of the constitutional principles of a state under the rule of law, justice, equality of people before the court and other constitutional principles. The practice of courts of general jurisdiction in cases of corresponding categories has to be corrected and new court precedents in these categories may be created only when it is unavoidably and objectively necessary, when it is constitutionally grounded and justified. Such correction of practice of courts of general jurisdiction (deviation from the previous precedents, which had been binding on courts until then and creation of new precedents) must in all cases be properly (clearly and rationally) argued in corresponding decisions of courts of general jurisdiction. No creation or reasoning of a new court precedent may be determined by accidental (in the aspect of law) factors. It is such correction—only when it is unavoidably and objectively necessary, and when it is properly (clearly and rationally) argued in all cases—of the practice of courts of general jurisdiction (deviation from the previous precedents that had been binding on courts by then and creation of new precedents) that must be respectively ensured by the Court of Appeal of Lithuania and the Supreme Court of Lithuania within their competence. If the said requirements arising from the Constitution are disregarded when the court decisions are adopted, not only the preconditions for the irregularities and inconsistencies to occur in the practice of courts of general jurisdiction and the legal system are created, not only the jurisprudence of courts become less predictable, but also there are grounds for doubts on whether the corresponding courts of general jurisdiction were impartial when adopting the decisions, and whether these decisions were not subjective in other aspects. The instance system of the courts of general jurisdiction arising from the Constitution may not be interpreted as restricting the procedural independence of the courts of general jurisdiction of lower instance, either: however, as mentioned before, under the Constitution, when adopting decisions in the cases of corresponding categories, the courts of general jurisdiction of lower instance are bound by decisions of courts of general jurisdiction of higher instance—precedents in the cases of these categories; courts of general jurisdiction of higher legal power (and their judges) may not interfere in the cases considered by courts of general jurisdiction of lower instance, nor give them any instructions, either obligatory or recommendatory, on how corresponding cases must be decided etc.; from the aspect of the Constitution, such instructions (whether obligatory or recommendatory) would be regarded as the ultra vires acting of corresponding courts (judges). Under the Constitution, court practice is formed only when courts decide cases themselves. The imperatives of the activity of the courts of general jurisdiction and legal regulation of this activity arising from the Constitution and discussed in this ruling of the Constitutional Court should also be applied mutatis mutandis to the activity of the specialised courts established under Paragraph 2 of Article 111 of the Constitution and its legal regulation.

In this context it also needs to be mentioned that, as it has been held by the Constitutional Court, the Constitutional Court is bound by the precedents that it itself has created and by the official constitutional doctrine which has been formulated by the Constitutional Court and which substantiates these precedents (the Constitutional Court’s decision of 21 November 2006). The Constitutional Court, while referring to its already formed constitutional doctrine and precedents, must ensure the continuity of the constitutional jurisprudence (its consecution, consistency) and the predictability of its decisions. It may be possible to deviate from the Constitutional Court precedents created while adopting decisions in cases of constitutional justice and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and reasoned; also the official constitutional doctrinal provisions on which the precedents of the Constitutional Court are based may not be reinterpreted so that the official constitutional doctrine would be corrected when it is unavoidably and objectively necessary, constitutionally grounded and reasoned; any change of the precedents of the Constitutional Court or correction of the official constitutional doctrine may not be determined by accidental (in the aspect of law) factors. The said necessity to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected may be determined only by the circumstances as the necessity to increase possibilities of implementing the innate and acquired rights of persons and their legitimate interests, the necessity to better defend and protect the values enshrined in the Constitution, the need to create better conditions in order to reach the aims of the Lithuanian Nation declared in the Constitution on which the Constitution itself is based, the necessity to expand the possibilities of the constitutional control in this country in order to guarantee constitutional justice and to ensure that no legal act (part thereof) which is in conflict with legal act of higher legal force, would have the immunity from being removed from the legal system. It is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, their compatibility is denied, the protection guarantees of the supremacy of the Constitution in the legal system are reduced, the concept of the Constitution as a single act and harmonious system is denied, the guarantees of rights and freedoms of the person entrenched in the Constitution are reduced and the model of the separation of powers enshrined in the Constitution is changed. Every case of such reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court (the Constitutional Court’s ruling of 28 March 2006 and its decisions of 8 August 2006 and 21 November 2006).

Thus, court precedents are sources of law—auctoritate rationis; the reference to the precedents is a condition for the uniform (regular, consistent) court practice as well as that of implementation of the principle of justice entrenched in the Constitution. Therefore, it is not permitted to unreasonably ignore court precedents. In order to perform this function properly, the precedents themselves should be clear. Court precedents may not be in conflict with the official constitutional doctrine, either.

9. On the other hand, it is not permitted to overestimate, let alone make absolute, the significance of court precedents as sources of law. Court precedents must be invoked with particular care. It needs to be emphasised that in the course of consideration of cases by courts, only those previous decisions of courts have the power of a precedent, which were created in analogous cases, i.e. the precedent is applied only in those cases whose factual circumstances are identical or very similar to the factual circumstances of the case in which the precedent was created, and with regard to which the same law should be applied as in the case in which the precedent was created. In a situation where there is competition of precedents (i.e. when there are several differing court decisions adopted in analogous cases) one must follow the precedent that was created by the court of higher instance (a higher court). Also, account should be taken of the time of the creation of the precedent and of other factors of significance, as, for instance: of the fact whether the corresponding precedent reflects the established court practice, or whether it is a single occurrence; of whether the reasoning of the decision is convincing; of the composition of the court that adopted the decision (whether the corresponding decision was adopted by a single judge, or by a college of judges, or whether by the enlarged college of judges, or whether by the entire composition of the court (its chamber)); whether there were any dissenting opinions of judges expressed because of the previous court decision; of possible significant (social, economic etc.) changes which took place after the adoption of the corresponding court decision, which has the significance of a precedent, etc. As mentioned before, in cases when the correction of court practice is unavoidably and objectively necessary, the courts may deviate from the previous precedents, which had been binding on the courts until then, and create new precedents, however, it must be done by properly (clearly and rationally) arguing it. It needs to be specially emphasised that, when deviating from its previous precedents, the court must not only properly argue the adopted decision itself (i.e. the created precedent itself), but also clearly set forth the reasoning and the arguments substantiating the necessity to deviate from the previous precedent.

10. One of the necessary conditions of ensuring the uniformity (regularity, consistency) of court practice, thus, the continuity of the jurisprudence as well, is the accessibility of the precedents of courts of general jurisdiction of all levels and of all specialised courts established under Paragraph 2 of Article 111 of the Constitution, which is determined by the creation of corresponding information systems, and ensuring organisational and technical possibilities for courts (judges) to become familiarised with decisions-precedents previously adopted by courts in analogous cases.

It has been held in this ruling of the Constitutional Court that the Vilnius Regional Court, the petitioner, does not impugn the legal regulation established in the Law on Courts which is referred to in Article 4 (wording of 28 February 2002) of the CCP; the said legal regulation is not a matter of investigation in the constitutional justice case at issue.

11. As mentioned before, the doubts of the Vilnius Regional Court, the petitioner, regarding the compliance of Article 4 (wording of 28 February 2002) of the CCP with the Constitution are grounded on the fact that, in the opinion of the petitioner, according to this article, the courts, when they apply law, must take account of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure ant that they do not have a duty to take account of those court decisions (rulings) which were adopted under non-cassation procedure.

12. While deciding, subsequent to the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether the provision “the courts, when they apply law, shall take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure” of Article 4 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution, it needs to be noted that this article of the CCP does not contain the word “only”, i.e. the word which is very important and essential in the arguments of the petition of the petitioner. Thus, the impugned provision may (and must) be construed in a way so that it would be in line with the constitutional requirements, i.e. as the one that does not prevent the courts, when they consider cases, to take account not only of the construction of the application of law which is contained only in the pronounced rulings adopted under cassation procedure, but also of the construction of law which is in the decisions and rulings of other courts of higher instance, provided they have the significance of precedent for the corresponding court in deciding an analogous case, and as the one not preventing to take account of their own practice of application of law. Although the impugned norm (also entire Article 4 (wording of 28 February 2002) of the CCP and the entire CCP as well) is not flawless from the standpoint of the legal technique, since the duty of court of general jurisdiction to pay heed to the precedents created both by themselves and by all courts of higher instance is not explicitly consolidated (either in this, or any other article of the CCP), this is not a sufficient ground for recognition of the impugned legal regulation as limiting the constitutional powers of the court to administer justice and because of this violating Article 109 of the Constitution or as hindering the court to heed the maxim (arising, inter alia, from the principle of the equality of persons) whereby the same (analogous) cases should be decided in the same manner and thus violating Paragraph 1 of Article 29 of the Constitution.

13 Taking account of the arguments set forth, the conclusion should be drawn that the provision “the courts, when they apply law, shall take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure” of Article 4 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

II

On the compliance of Article 165 (wording of 28 February 2002) of the CCP with Paragraph 1 of Article 29 and Article 109 of the Constitution.

1. The Vilnius Regional Court, the petitioner, requests an investigation into whether Article 165 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

2. Article 165 (wording of 28 February 2002) of the CCP provides: “A separate complaint may be lodged against a court ruling on suspending the case, save the ruling whereby one applies to the Constitutional Court or an administrative court.”

3. The doubts of the Vilnius Regional Court, the petitioner, regarding the compliance of Article 165 (wording of 28 February 2002) of the CCP with the Constitution are grounded on the fact that, according to the petitioner, Article 165 of the CCP prohibits lodging a separate complaint regarding a court ruling, whereby the corresponding case was suspended due to the application to the Constitutional Court or an administrative court, although the CCP does not limit the right to lodge a complaint where the case is suspended under Item 9 of Article 163 of the CCP, i.e. when the court applies to a competent institution of the EU. Because of the suspension of the case, its consideration might become protracted therefore, according to the petitioner, there should always be a possibility of reviewing such rulings in courts of higher instance in the aspect of the lawfulness and reasonableness of such rulings. On the other hand, it is clear from the case considered by the Vilnius Regional Court, the petitioner, in which the ruling was adopted to apply to the Constitutional Court, that the doubts of the petitioner should be related only with a legal situation, where the court suspends the case because it decides to apply to the Constitutional Court or an administrative court, but not on other grounds, i.e. the petitioner impugns the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP.

Subsequent to the petition of the Vilnius Regional Court, the petitioner, the Constitutional Court will investigate whether the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

4. It needs to be noted that Article 165 (wording of 28 February 2002) of the CCP is designed for the regulation of the relations linked with lodging a complaint against not all, but only with rulings of courts of first instance regarding suspension of the case. The legal regulation of lodging a complaint against rulings of courts of the appeal instance (of higher instance) is consolidated in Chapter XVII “Proceedings of Cases in a Cassation Court”; the corresponding legal regulation is not a matter of investigation in the constitutional justice case at issue.

5. It needs to be mentioned that the legal regulation which is analogous to Article 165 (wording of 28 February 2002) of the CCP is consolidated also in other laws (Law on the Proceedings of Administrative Cases, the Code of Criminal Procedure of the Republic of Lithuania), however, the constitutionality of the provisions of these laws is not impugned, therefore, the corresponding legal regulation is not a matter of investigation in the constitutional justice case at issue.

6. The Constitutional Court, while construing Article 109 of the Constitution (in which, as mentioned before, it is prescribed that in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1); while administering justice, the judge and courts shall be independent (Paragraph 2); when considering cases, judges shall obey only the law (Paragraph 3); the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4)), has held more than once (inter alia, in its rulings of 21 December 1999, 9 May 2006, 6 June 2006, and 27 November 2006) that courts, when they administer justice, must ensure the implementation of law expressed in the Constitution, laws and other legal acts, to guarantee the supremacy of law, to protect human rights and freedoms. The constitutional concept of justice also implies that courts must decide cases only by strictly adhering to the procedural and other requirements established in laws and without overstepping the limits of their jurisdiction, nor exceeding their other powers (the Constitutional Court’s ruling of 16 January 2006). The duty of courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions (the Constitutional Court’s ruling of 15 May 2007). The principle of justice entrenched in the Constitution as well as the provision that justice is administered solely by courts mean that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision; the constitutional concept of justice implies not only a formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered only formally by the court is not the justice which is consolidated in and protected and defended by the Constitution (the Constitutional Court’s ruling of 21 September 2006).

The said requirements arising from the constitutional concept of administration of justice should be applied also to the decisions (rulings) courts of general jurisdiction and the specialised courts established under Paragraph 2 of Article 111 of the Constitution regarding the application to the Constitutional Court with a petition requesting an investigation into and a decision on whether a legal act (part thereof) which was passed by the Seimas, the President of the Republic or the Government, or adopted by referendum, which should be applied in the considered case, is not in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution. The same requirements should also be applied to the court decisions (rulings) regarding the application to the corresponding administrative court with a petition requesting an investigation into whether a legal act (part thereof), the verification of the compliance of which with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, has been assigned to the jurisdiction of administrative courts, but not the Constitutional Court, is not in conflict with the Constitution (another act of higher legal force).

7. The powers of courts to suspend the consideration of the case and apply to the Constitutional Court with a petition requesting an investigation into the compliance of the legal act with the Constitution are expressis verbis consolidated in the Constitution: it is prescribed in Paragraph 2 of Article 110 of the Constitution that in cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

8. In the context of the constitutional justice case at issue, in which, subsequent to the petition of the Vilnius Regional Court, the petitioner, the Constitutional Court investigates whether, inter alia, the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP is not in conflict with the Constitution, the following provisions of the official constitutional doctrine should be mentioned (which were formulated, inter alia, in the Constitutional Court’s rulings of 21 August 2002, 4 March 2003, 24 March 2003, 10 June 2003, 30 December 2003, 17 August 2004, 2 September 2004, 29 September 2004, 13 December 2004, 29 December 2004, 27 January 2005, 7 February 2005 and 8 July 2005, its decision of 20 September 2005, its rulings of 16 January 2006, 28 March 2006, 30 March 2006, its decision of 8 August 2006, its ruling of 27 June 2007, and in other legal acts adopted by the Constitutional Court in previous constitutional justice cases), in which Article 110 of the Constitution is construed by relating it to other provisions of the Constitution, inter alia, with the constitutional principle of a state under the rule of law and to the provisions of the Constitution regarding specialised (administrative) courts:

one of the essential elements of the principle of a state under the rule of law, which is consolidated in the Constitution, is the principle that a legal act, which is in conflict with a legal act of higher legal force, may not be applied;

upon establishing, in Article 110 of the Constitution, the prohibition on applying a law that is in conflict with the Constitution and a duty of a judge considering a case, in case there are doubts whether the law or other legal act applicable in the case is not in conflict with the Constitution, to suspend the consideration of the case and to apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution, one seeks to achieve a situation where the corresponding legal act (part thereof) which is in conflict with the Constitution is not applied, where there would not be any anti-constitutional legal effects due to the application of such a legal act (part thereof), where the rights of the person are not violated, and where a person in whose regard a legal act inconsistent with the Constitution or the law was applied would not unreasonably acquire, due to this, any rights or corresponding legal status that does not belong to him;

in cases where a court, which is considering a case, faces doubts whether a law (other legal act) applicable in the case is not in conflict with the Constitution, it must apply to the Constitutional Court and request it to decide whether this law (other legal act) is in compliance with the Constitution, and until the Constitutional Court decides this issue, the consideration of the case in court may not be continued, i.e. it must be suspended; neither Paragraph 2 of Article 110 of the Constitution, nor any other part of the Constitution establishes expressis verbis by what procedural decision the consideration of the case must be suspended; the establishment of this must be specified by the legislature;

the legal regulation established by the legislature must be such so that the suspended case from which the circumstances are seen due to which the impugned legal act should be applied in the said case, must be accessible to the Constitutional Court; only in this way the necessary conditions can be created in order that the Constitutional Court might administer constitutional justice and decide whether the law or other legal act which must be applied in the case considered by the court is not in conflict with the Constitution (while a substatutory legal act of the Seimas, an act of the President of the Republic or an act of the Government—with the Constitution and/or laws);

if the court, after it has faced doubts as regards the compliance of the law applicable in the case with the Constitution, did not suspend the consideration of the case and did not apply to the Constitutional Court so that these doubts could be removed, and if the legal act the compliance of which with the Constitution is doubtful was applied in the case, the court would take a risk to adopt such a decision, which would not be a just one;

under the Constitution, the Constitutional Court decides as for the compliance of not all legal acts (parts thereof) with the Constitution (other legal acts of higher legal force), but only whether legal acts (part thereof) issued by the Seimas, the President of the Republic or the Government or adopted by referendum are not in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution;

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

when executing this constitutional imperative, under the Constitution, the legislature has the duty to establish by law, in which courts (of general jurisdiction or specialised ones, established under Paragraph 2 of Article 111 of the Constitution) and under which procedure one must investigate and decide whether the legal acts (parts thereof) the control of whose compliance with the Constitution is not assigned to the jurisdiction of the Constitutional Court under the Constitution (inter alia, legal acts passed by the ministers, other substatutory legal acts of lower legal force, as well as legal acts passed by municipal institutions) are not in conflict with the Constitution and laws; if the legislature for certain reasons has not carried out this constitutional duty (though the Constitution does not tolerate this), still the courts, under Paragraph 1 of Article 110 of the Constitution, may not apply any such legal acts, which are in conflict with the Constitution;

at present the legal regulation is established by the Law on the Proceedings of Administrative Cases and other laws whereby decision on the compliance of the legal acts, passed by other subjects of law-making (thus, those passed not by the Seimas, the President of the Republic or the Government and not adopted by referendum) with legal act of higher legal force, inter alia (and, first of all), with the Constitution, is assigned to the jurisdiction of administrative courts; if the administrative court rules such a legal act to be in conflict with the Constitution (another legal act of higher legal force), then, under the Constitution and laws, such a decision of the said court has erga omnes impact on the whole practice of the application of corresponding legal acts (parts thereof);

the investigation into whether the legal acts (parts thereof), passed by other subjects of law-making (thus, which were passed not by the Seimas, the President of the Republic or the Government and not adopted by referendum) are not in conflict with legal act of higher legal force, inter alia (and, first of all), with the Constitution, and adoption of corresponding decisions imply the necessity for the administrative court that decides the case to ascertain whether these legal act of higher legal force (parts thereof) themselves are not in conflict with any legal acts of even higher legal force, inter alia (and, first of all), with the Constitution, and, if there are doubts, in order to remove them, to take measures provided for in the Constitution and laws, certainly, without interfering with the powers assigned to the Constitutional Court; if this is not done, there would be a risk to adopt a decision that would not be a just one, i.e. to apply a certain legal act (part thereof), based on the legal act of higher legal force, which would be ruled to be in conflict with a legal act of even higher legal force, or even with the Constitution itself if a proper investigation were carried out, or not to apply a certain legal act (part thereof) that was ruled to be in conflict with a legal act of higher legal force by the administrative court, even though that legal act of higher legal force should be ruled to be in conflict with a legal act of even higher legal force, or even with the Constitution itself if a proper investigation were carried out; in case this happened, preconditions would be created for violating the values, inter alia, the constitutional rights of the person, entrenched in and protected and defended by the Constitution;

the investigation into the compliance of the legal acts (parts thereof) passed by other subjects of law-making (thus, which were passed not by the Seimas, the President of the Republic or the Government and not adopted by referendum) which are assigned to the jurisdiction of administrative courts by law (inter alia, by the Law on the Proceedings of Administrative Cases), with legal act of higher legal force, save the Constitution itself, implies the initiation of the corresponding case of constitutional justice at the Constitutional Court, thus, also the duty of the administrative courts to apply in such cases to the Constitutional Court with the corresponding petition if the administrative court has doubts on the compliance of a legal act (part thereof) of higher legal force, passed by the Seimas, the President of the Republic or the Government or adopted by referendum, with a legal act of even higher legal force, inter alia (and, first of all), with the Constitution;

the right of each person to defend his rights on the basis of the Constitution and the right to apply to court of the person whose constitutional rights or freedoms are violated also imply that each party of the case considered by a court, which has doubted on the compliance of the law or other legal act (part thereof) that may be applied in that case and the investigation into the compliance of which with the Constitution (other legal act of higher legal force) is assigned to the jurisdiction of the Constitutional Court (i.e. the compliance of a certain act (part thereof) of the Seimas, the President of the Republic or the Government or an act (part thereof) adopted by referendum with the Constitution (other legal act of higher legal force)), has the right to apply to the court of general jurisdiction or the corresponding specialised court established under Paragraph 2 of Article 111 of the Constitution which considers the case and to request that court to suspend the consideration of the case and to apply to the Constitutional Court with a petition, requesting an investigation into and a decision on whether the legal act (part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum and which is applicable in the said case, is not in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution; this is also applicable mutatis mutandis to those legal situations when a certain party of a case considered by a court has doubts on the compliance of the law or other legal act (part thereof) that may be applied in that case and the investigation into the compliance of which with the Constitution (other legal act of higher legal force) is not assigned to the jurisdiction of the Constitutional Court (i.e. that act has not been passed by the Seimas, by the President of the Republic or by the Government and it has not been adopted by referendum)—the said party, under the Constitution and laws (inter alia, Law on the Proceedings of Administrative Cases), has the right to apply to the corresponding administrative court on the compliance of such legal act (part thereof) with the Constitution (other legal act of higher legal force);

the courts, having doubted on the compliance of a legal act (part thereof), passed by the Seimas, the President of the Republic or the Government or adopted by referendum with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, not only may but also must apply to the Constitutional Court;

the Constitution does not tolerate any such situations, where a certain court, which, in a case considered by it, has to apply a legal act (part thereof) regarding the compliance of which with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, another petitioner (for example, another court) has already applied to the Constitutional Court, neither (in case it doubts on the compliance of the legal act (part thereof) with a legal act of higher legal force, inter alia (and, first of all), with the Constitution) suspends the consideration of the corresponding case and applies to the Constitutional Court in order that these doubts would be removed, nor (in case it doubts on the compliance of the legal act (part thereof) with a legal act of higher legal force, inter alia (and, first of all), with the Constitution) applies this legal act (part thereof), but when it has information that another petitioner (for example, another court) has already applied to the Constitutional Court concerning the compliance of that legal act (part thereof) with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, suspends the consideration of the case and does not consider the case in substance before the Constitutional Court finishes the consideration of the corresponding case under the petition of the said another petitioner;

under the Constitution, the court considering the case which, under the Constitution, not only has the powers but (if it has certain doubts) must also apply to the Constitutional Court with a petition requesting it to decide whether the legal act (part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum is not in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution, also has the constitutionally grounded interest to receive the corresponding answer of the Constitutional Court that such an answer will be given; a different construction of the corresponding provisions of the Constitution could create preconditions for the court that considers the corresponding case to apply such law or other legal act (part thereof) on whose compliance with the Constitution (other legal act of higher legal force) the said court has doubts;

in the cases when the Constitutional Court is applied by a court which considers a case and which had doubts on the compliance of the law applicable in that case with the Constitution as well as on the compliance of other act passed by the Seimas, the President of the Republic, or the Government with the Constitution or laws, the Constitutional Court has the duty to consider the petition of the court irrespective of whether the impugned law or another legal act is valid or not.

In the context of the provisions of the official constitutional doctrine, it should also be mentioned that, under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting an investigation into whether a law (part thereof) or another legal act (part thereof), which should not (could not) be applied in the case considered by the said court is not in conflict with the Constitution (the Constitutional Court’s decisions of 22 May 2007, 27 June 2007, and 5 July 2007).

9. In the context of the constitutional justice case at issue it needs to be noted that, under the CCP, courts must heed the principles and norms of civil procedure law, however, this duty of the court may not be interpreted as permitting raising the principles and norms of civil procedure law or those of civil law above the principles and norms of the Constitution, or as permitting construing the principles and norms of civil procedure law or those of civil law so that the meaning of the provisions of the Constitution would be distorted or ignored (the Constitutional Court’s ruling of 21 September 2006).

10. In the context of the constitutional justice case at issue, it needs to be noted that, as it was held in the Constitutional Court’s ruling of 21 September 2006, under the Constitution, the relations of civil procedure have to be regulated by means of a law in the way that legal pre-conditions would be created for a court to investigate all the circumstances which are important to the case and to adopt a just decision in the case and that it would be possible to file an appeal against any final act, which was adopted at a court of first instance, at a court of higher instance. In the same ruling the Constitutional Court also held that the law must establish not only the right of the party to the proceedings to lodge an appeal with at least one court of higher instance against any final act which was adopted in a case by a court of first instance, but also it must establish a procedure of such appeal, which would enable one to correct possible mistakes of the court of first instance; otherwise, one would deviate from the constitutional principle of a state under the rule of law and the constitutional right of the person to the due process of law would be violated. It was also held in the same ruling of the Constitutional Court that “by each final court act justice is administered in a corresponding case” and that “the final court act adopted in a corresponding case is one act of application of law, whereby that case is finished”.

In the context of the necessity (which arises from the Constitution) to provide for an opportunity to lodge an appeal with at least one court of higher instance against any final act which was adopted in a case by a court of first instance, it needs to be noted that until the adoption of the court final act in the case, the court has to adopt procedural decisions of a varied form and character, by which the case is not completed. Such procedural court decisions are not court final acts. The Constitution does not demand that an opportunity be ensured by means of a law to lodge a complaint against any court procedural decision adopted in the case (i.e. not a final act); various exceptions are possible in this area. Attention should be paid to the fact that, as it was held in the Constitutional Court’s ruling of 21 September 2006, the Constitution does not prevent regulating the civil procedure whereby no legal preconditions are created, which could permit the parties to the proceedings to abuse their right to appeal against a decision adopted in their case and, thus, to procrastinate the proceedings.

In this context, it should be noted that the formula “lodging a complaint with at least one court of higher instance against any final act which was adopted in a case by a court of first instance” is employed in the jurisprudence of the Constitutional Court (as well as in this ruling of the Constitutional Court) in its constitutional meaning, but not in the manner that this formula could be used (is used) in ordinary law. The legislature, while regulating the relations of civil procedure, enjoys certain discretion in establishing various grounds and terms for lodging such complaint, as well as various judicial institutions with which one can lodge a complaint against final acts of a court of first instance, and in consolidating corresponding separate institutes in civil procedure laws. In exceptional cases and only if it is possible to substantiate it constitutionally (inter alia, by the fact that no legal preconditions would be created, which could permit the parties to the proceedings to abuse their right to lodge a complaint against a decision adopted in their case and, thus, to procrastinate the proceedings) one can also establish (without creating any legal preconditions for violating the rights of the person, or other constitutional values, or for deviating from the requirements of the due process of law) such legal regulation whereby one could lodge a complaint against certain final acts adopted by a court of first instance not with a court of higher instance, but with the court that adopted the corresponding final act (every such situation could be subject to constitutional control). In this respect the notion “lodging a complaint” (which, as mentioned before, is employed not in the ordinary, but constitutional sense) encompasses not only lodging the corresponding complaint (appeal, cassation) provided for in civil procedure laws, by means of which one attempts to initiate a review of this final act (also to renew the consideration of the case), but also other situations of lodging a complaint against a final act adopted by a court of first instance. While defining such situations, in civil procedure laws one can consolidate various notions (not only the notion “lodging a complaint”), which reflect corresponding separate institutes of civil procedure. However, the Constitution does not permit establishing any such legal regulation whereby in cases of a certain category it would be impossible in all situations to seek to initiate reviewing the final act adopted by the court of first instance in the said case, since, thus, one would deny an opportunity to correct possible mistakes made by the court, to apply law justly and to administer justice; upon establishing such legal regulation, the constitutional concept of justice would be limited only to formal, nominal justice administered by the court, only to the appearance of justice administered by the court, but it would not mean the justice which is consolidated in and protected and defended by the Constitution; the legal regulation established in civil procedure law (i.e. in ordinary law) would be placed above the principles and norms of the Constitution.

11. It needs to be emphasised that the court, while suspending the consideration of the case because of the application to the Constitutional Court or an administrative court, does not decide the case in essence, but only creates preconditions for adopting a just court final act. As mentioned before, in cases where a court, which is considering a case, faces doubts whether a law (other legal act) applicable in the case is not in conflict with the Constitution, it must apply to the Constitutional Court and request it to decide whether this law (other legal act) is in compliance with the Constitution, and until the Constitutional Court decides this issue, the consideration of the case in court may not be continued, i.e. it must be suspended. Thus, the application to the Constitutional Court or an administrative court and suspension of the case in which it was decided to apply to the Constitutional Court or an administrative court are procedural actions, which are inseparably interrelated.

It has also been mentioned that neither Paragraph 2 of Article 110 of the Constitution, nor any other part of the Constitution establishes expressis verbis by what procedural decision the consideration of the case must be suspended and that the establishment of this must be specified by the legislature. Under Article 165 (wording of 28 February 2002) of the CCP, the court, which has decided to apply to the Constitutional Court or an administrative court, shall suspend the case by its ruling. The application of the court to the Constitutional Court or an administrative court is also formalised by means of a ruling according to laws (Paragraph 2 of Article 67 of the Law on the Constitutional Court, Paragraph 4 (wording of 28 February 2002) of Article 3 (wording of 8 April 2003) of the CCP). According to the established court practice both these procedural actions are formalised by one and the same ruling. In itself the Constitution does not prohibit this.

Thus, since the court ruling, by which one suspends the consideration of the case and applies to the Constitutional Court or an administrative court, does not finish the case, then such a ruling is not a court final act, and the Constitution guarantees the possibility of lodging a complaint against such a ruling.

12. On the other hand, the fact that the Constitution does not demand that a law should ensure the possibility of lodging a complaint against any court procedural decision (which is not a final act) does not mean that a court, while adopting such a decision, can disregard the requirements raised to court acts, especially to court final acts. The requirements (inter alia, regarding argumentation, clarity and comprehensiveness of court decisions) raised to court final acts should also be applied to the decisions of courts of general jurisdiction and the specialised courts established under Paragraph 2 of Article 111 of the Constitution to apply or not to apply (even if a party to the case requests so) to the Constitutional Court with a petition requesting an investigation into and a decision on whether a legal act (part thereof) issued by the Seimas, the President of the Republic or the Government or adopted by referendum is not in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution (the Constitutional Court’s rulings of 28 March 2006 and 5 July 2007).

In this context, it needs to be mentioned that, as the Constitutional Court has held in its acts, the courts that apply to the Constitutional Court with the petition requesting an investigation into whether the law or other legal act (part thereof) is not in conflict with the Constitution, while arguing their opinion presented in the petition that the law or other legal act (part thereof) is in conflict with the Constitution, may not confine themselves to general reasoning or statements that the law or other legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which impugned articles (paragraphs, items thereof) and to what extent, in their opinion, are in conflict with the Constitution, and to reason their position on the compliance of every impugned provision of the legal act (part thereof) with the Constitution with clearly formulated legal arguments (the Constitutional Court’s rulings of 12 December 2005, 16 January 2006, 17 January 2006, decisions of 17 January 2006, 5 July 2007, 6 September 2007, and 12 September 2007).

13. Paragraph 1 of Article 102 of the Constitution (which provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws) should be construed as meaning that the Constitutional Court has the exclusive constitutional competence to investigate and decide on whether any act (part thereof) of the Seimas, the President of the Republic or the Government, or whether any act (part thereof) adopted by referendum is not in conflict with any legal act of higher legal force, inter alia (and, first of all), with the Constitution (the Constitutional Court’s rulings of 28 March 2006 and 6 June 2006 and decision of 8 August 2006).

In the context of the constitutional justice case at issue, it needs to be noted that the exclusive constitutional competence of the Constitutional Court to decide whether a certain act (part thereof) of the Seimas, the President of the Republic or the Government, or a certain act (part thereof) adopted by referendum is not in conflict with a certain legal act of higher legal force, inter alia, with the Constitution, also means the exclusive constitutional competence of the Constitutional Court to decide on the acceptability of petitions of the subjects (inter alia, courts) specified in Article 106 of the Constitution at the Constitutional Court. The construction with an opposite meaning of the empowerment of the Constitutional Court stemming from Paragraph 1 of Article 102 of the Constitution would virtually distort or even deny the essence and meaning of constitutional control and constitutional justice.

It has been mentioned that one of the essential elements of the principle of a state under the rule of law, which is consolidated in the Constitution, is the principle that a legal act, which is in conflict with a legal act of higher legal force, may not be applied; that the powers of courts to suspend the consideration of the case and apply to the Constitutional Court with a petition requesting an investigation into the compliance of the legal act with the Constitution are expressis verbis consolidated in the Constitution; that Article 110 of the Constitution consolidates the prohibition on applying a law that is in conflict with the Constitution and a duty of a judge considering a case, if there are doubts whether the law or other legal act applicable in the case is not in conflict with the Constitution, to suspend the consideration of the case and to apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

It needs to be emphasised that, under the Constitution, the grounds to initiate a constitutional justice case at the Constitutional Court are the doubts which arise to the court (judge) that is considering a concrete case, regarding the conformity of the legal act applicable in that case with the Constitution (other legal act of higher legal force), which must be removed so that the said court could adopt a just decision (other final court act) in that case. It is only the Constitutional Court that can remove such doubts (i.e. to deny or to confirm their reasonableness) within its competence. Thus, no court of general jurisdiction of higher instance or a specialised court established under Paragraph 2 of Article 111 of the Constitution enjoys the powers to assess the lawfulness and/or reasonableness of a ruling of a court of lower instance to suspend the consideration of the case and to apply to the Constitutional Court regarding the compliance of a legal act (part thereof) with the Constitution (other legal act of higher legal force), since, otherwise, preconditions would be created for violating the exclusive competence of the Constitutional Court established in Paragraph 1 of Article 102 of the Constitution, as well as virtually for denying the empowerment of the court (judge) (which are established in Paragraph 2 of Article 110 and Paragraphs 1, 2, and 3 of Article 106 of the Constitution) to suspend the consideration of the case and apply to the Constitutional Court.

The prohibition (which stems from the Constitution) for courts of higher instance on assessing the lawfulness and/or reasonableness of a ruling of a court of lower instance to suspend the consideration of the case and to apply to the Constitutional Court regarding the compliance of a legal act (part thereof) with the Constitution (other legal act of higher legal force) is also applied mutatis mutandis to the court rulings to apply to the corresponding administrative court with the petition requesting an investigation into whether a legal act (part thereof) which should be applied in the corresponding case and the verification of the compliance of which with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, is assigned to the jurisdiction of administrative courts, but not the Constitutional Court, is not in conflict with the Constitution.

Thus, it is impossible to assess the legal regulation consolidated in the impugned Article 165 (wording of 28 February 2002) of the CCP as the one limiting the constitutional empowerment to administer justice. Quite to the contrary, such legal regulation seeks to ensure that a just decision (other court final act) be adopted in the case.

14. Taking account of the arguments set forth, the conclusion should be drawn that the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP is not in conflict with Article 109 of the Constitution.

15. While deciding, subsequent to the petition of the Vilnius Regional Court, the petitioner, whether the impugned reservation is not in conflict with Paragraph 1 of Article 29 of the Constitution (in which, as mentioned before, it is prescribed that all persons shall be equal before the law, the court, and other state institutions and officials), it needs to be held that, as the Constitutional Court held in its acts more than once, the principle of equal rights of persons means the innate human right to be treated equally with others and it consolidates formal equality of all persons, obliges one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a varied manner, it does not allow the discrimination of persons or granting them any privileges, however, the same principle does not deny a possibility of establishing a different (differentiated) legal regulation in the law with respect to the categories of certain persons which are in different situations; this constitutional principle would be violated if certain persons to whom corresponding legal regulation is designated, if compared with other persons to whom the corresponding legal regulation is designated, were treated differently, even though there are no such differences between them so that such different treatment would be objectively justifiable.

16. In the context of the constitutional justice case at issue, it needs to be emphasised that, under the Constitution, the legal regulation of the relations of civil procedure must be such so that the participants (which have the same procedural legal status) to the proceedings would be treated equally; thus, they should have the same rights and duties, unless there are the differences between them of such a character and extent that the unequal treatment would be objectively justified; otherwise, one would deviate from the constitutional principles of a state under the rule of law and the equality of persons (the Constitutional Court’s ruling of 21 September 2006).

17. It has been mentioned that the doubts of the petitioner regarding the compliance of Article 165 (wording of 28 February 2002) of the CCP with the Constitution are grounded on, inter alia, the fact that, according to the petitioner, Article 165 of the CCP prohibits lodging a separate complaint regarding a court ruling, whereby the corresponding case was suspended due to the application to the Constitutional Court or an administrative court, although the CCP does not limit the right to lodge a complaint where the case is suspended under Item 9 of Article 163 of the CCP, i.e. when the court applies to a competent institution of the EU. It has also been mentioned that Article 165 (wording of 28 February 2002) of the CCP is designed for the regulation of the relations linked with lodging a complaint against not all, but only with rulings of courts of first instance regarding suspension of the case.

18. The impugned reservation and the provision that a separate complaint can be lodged regarding a court ruling to suspend the case because of the application to a competent institution of the EU is related with different legal situations.

The court of first instance applies to the Constitutional Court or an administrative court when it has doubts regarding the compliance of the legal act that should be applied in the case with the Constitution (other legal act of higher legal force); in order that a legal act conflicting with the Constitution would not be applied in the case, the said doubts must be removed, while the court can do so only by applying to the Constitutional Court or an administrative court. Meanwhile, a court of first instance (i.e. a national court) applies to an EU judicial institution when in the course of application of EU law it faces a problem of construction or validity of acts of EU law, and, in order that EU law might be properly applied, it is necessary to receive a preliminary ruling (under Article 234 of the Treaty Establishing the European Community). Thus, in each of these legal situations the court of first instance faces questions of a different character, and different judicial institutions—one of which is a national one (the Constitutional Court or an administrative court), while the other one is an EU judicial institution—have to help solve these questions.

Thus, there are no grounds to assert that the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP in the aspect pointed out by the Vilnius Regional Court, the petitioner, is in conflict with Paragraph 1 of Article 29 of the Constitution. On the other hand, taking account of the extent of the impugned regulation, the provision that a separate complaint can be lodged regarding a court ruling to suspend the case because of the application to a competent institution of the EU is not considered in any other aspect (inter alia, the compliance of the said provision with the Constitution in the constitutional justice case at issue).

19. Taking account of the arguments set forth, the conclusion should be drawn that the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 of the Constitution.

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:

To recognise that the provision “the courts, when they apply law, shall take account of the construction of the application of law which is contained in the rulings adopted under cassation procedure” of Article 4 (wording of 28 February 2002) (Official Gazette Valstybės žinios, 2002, No. 36-1340) and the reservation “save the ruling whereby one applies to the Constitutional Court or an administrative court” of Article 165 (wording of 28 February 2002) (Official Gazette Valstybės žinios, 2002, No. 36-1340) of the Code of Civil Procedure of the Republic of Lithuania are not in conflict with the Constitution of the Republic of Lithuania.

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

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

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