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On nominating a candidate for the position of representative of the Government

Case No. 33/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 222) “ON THE CANDIDATE TO THE GOVERNMENT REPRESENTATIVES” WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH ARTICLE 9 OF THE REPUBLIC OF LITHUANIA’S LAW ON PREVENTION OF CORRUPTION

 

13 August 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

Audrius Kasinskas, Deputy Head of the Law-making Division of the Law Department of the Ministry of the Interior of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 7 August 2007, considered constitutional justice case No. 33/04 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 222) “On the Candidate to the Government Representatives” of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution, with Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities, with Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Republic of Lithuania’s Law on State Service.

The Constitutional Court

has established:

I

On 27 February 2004, the Government issued the Resolution (No. 222) “On the Candidate to the Government Representatives” (hereinafter also referred to as government resolution No. 222 of 27 February 2004), in which it is prescribed:

Pursuant to Item 14 of Article 22 of the Law on the Government of the Republic of Lithuania (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities (Official Gazette Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6 of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on State Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297), the Government of the Republic of Lithuania resolves:

1. Not to appoint Paulius Uleckas to the position of the government representative for the Marijampolė County.

2. To empower the Minister of the Interior Virgilijus Bulovas to select, under procedure established in legal acts, an applicant to the office of the government representative for the Marijampolė County, and to submit a draft resolution to the Government of the Republic of Lithuania concerning his appointment.”

II

The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether government resolution No. 222 of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution, with Article 3 of the Law on Administrative Supervision of Municipalities, with Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Law on State Service.

III

The petition of the Vilnius Regional Administrative Court is based on the following arguments.

1. Under Item 2 of Article 94 of the Constitution, the Government shall execute laws and resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic.

1.1. The Government, having the powers to appoint persons to positions of state servants, shall also have the duty to follow both the common and special requirements of laws regarding the appointment of state servants to office. The common requirements are established in Paragraph 1 (wording of 23 April 2002) of Article 9 of the Law on State Service and they are as follows: (1) to hold citizenship of the Republic of Lithuania; (2) be proficient in the Lithuanian language; (3) to be not less than 18 years of age and not more than 62 years and 6 months of age; (4) to have the education necessary to occupy a position of that level in the state service. Under Paragraph 3 (wording of 3 April 2003) of the same article, the following persons shall not be eligible for the positions in the state service: (1) those found guilty, in accordance with the procedure prescribed by law, of a serious or grave crime, or a criminal act against the state service and public interest or any act comprising elements of corruptive nature, and whose conviction has not been spent or expunged; (2) those who have been deprived by the court of the right to occupy a position in the state service; (3) those whose spouse, close relative or a person related to him by marriage performs the duties of a civil servant in a state or municipal institution or agency in the event that they would be related by direct subordination according to the positions held by them; (4) those recognised legally incapable in accordance with the procedure prescribed by law; (5) those who are members of an organisation which is prohibited in accordance with the procedure prescribed by law; (6) in other cases provided for by other laws. Under Paragraph 5 of the same article (wording of 4 July 2003), persons recruited to the state service shall also meet special requirements set out in the job description. A person recruited as head of an institution through competition shall be examined in writing (a test) and orally (an interview); in the course of an interview, the ability of a person to perform the functions specified in the job description of the state service shall be assessed (Paragraph 2 of Article 13 (wording of 23 June 2002) of the Law on State Service).

1.2. The government resolution on admission of the government representative to the state service has also not to be in conflict with the provisions of Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities which enshrine the procedure for admission of the government representative into the position of a state servant: the government representative is the head of the institution, appointed to office for four years and released from office under the procedure established in the Law on State Service (Paragraph 1); a person with higher university education or education compared to university education and with work experience in public administration which is not less than five years or a person with higher university education in public administration and the work experience in public administration which is not less than three years may be appointed as the government representative (Paragraph 3).

1.3. The procedure of admission to state service and the organisation of competitions for the positions in state service are regulated in more detail by the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002, Item 14 whereof enshrines the requirement, while accepting the applications of the candidates, to verify their compliance with the requirements of Paragraph 1 of Article 9 of the Law on State Service; under Item 66 of the said procedure, a person who won the competition shall be appointed to the position in not less than 3 working days and not more than 14 calendar days upon the end of the competition.

2. In the opinion of the Vilnius Regional Administrative Court, the petitioner, when the government representative is admitted to office, it is sufficient that he: (1) meets the established common and special requirements; (2) wins the competition; Articles 11 and 13 of the Law on State Service do not provide (nor do said articles give any reasons) that a person who won the competition could be not admitted to the state service, thus, if both specified conditions are fulfilled, the person must be appointed as the government representative. According to the petitioner, “the government resolution of the opposite content” would be in conflict with Article 3 of the Law on Administrative Supervision of Municipalities and with Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Law on State Service; such a government resolution which is in conflict with the laws would be in conflict with Item 2 of Article 94 of the Constitution, under which the Government shall execute laws.

3. The impugned government resolution is based on the following: (1) Paragraph 3 of Article 9 of the Law on State Service, under which the persons shall not be eligible for the state service in other cases provided for by other laws; (2) Paragraph 2 of Article 9 of the Law on Prevention of Corruption, under which the employer shall have the duty to verify the credibility of the candidate—to request information about the person who seeks to be admitted to a position in a state institution, and Paragraph 9 of this article, under which, a person, who lost his credibility, may be not admitted to state service. In the opinion of the Vilnius Regional Administrative Court, the petitioner, at the stage of submitting applications to participate in the competition, one may not verify the credibility of the candidates as this is not provided neither in the Law on State Service, nor in the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002.

In the opinion of the Vilnius Regional Administrative Court, the petitioner, following the provisions of the Law on Prevention of Corruption (namely Paragraph 9 of Article 9 thereof), it is impossible not to complete the procedure of the competition and not to admit to the position the person who won the competition as this law (Paragraph 9 of Article 9 thereof) is not a legal act which regulates the legal relations of the state service (i.e. it is not a special legal act). The legal relations of admission of state servants to their positions should be regulated by law so that there would be no ambiguities: either the credibility of the candidates should be verified at the stage of admission of applications, or the laws must establish the exceptions when the duty to admit persons who won the competition to the state service should not be carried out.

Thus, according to the Vilnius Regional Administrative Court, the petitioner, following Paragraph 9 of Article 9 of the Law on Prevention of Corruption, it was not possible not to appoint P. Uleckas to the position of the government representative for the Marijampolė County.

4. In the opinion of the Vilnius Regional Administrative Court, the petitioner, government resolution No. 222 of 27 February 2004 is in conflict with Paragraph 1 (with the constitutional principle of equality of all persons before the law) of Article 29, as well as with Paragraph 1 of Article 33 of the Constitution, under which, each person who meets the conditions for entering the state service established by law and who has fulfilled its procedures, must be admitted to the state service, as P. Uleckas was not appointed to the position the competition for which he had won, even though there were no obstacles for that provided for in the laws (in Item 14 of Article 22 of the Law on the Government, Paragraph 3 of Article 3 of the Law on Administrative Supervision of Municipalities and Paragraphs 1 and 3 of Article 9 and Item 3 of Paragraph 2 of Article 10 of the Law on State Service). Thus, according to the Vilnius Regional Administrative Court, the petitioner, a different legal regulation was applied to P. Uleckas if compared to other persons.

5. In the opinion of the Vilnius Regional Administrative Court, the petitioner, the doubt regarding the compliance of government resolution No. 222 of 27 February 2004 with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution also implies the doubt whether the impugned government resolution is not in conflict with the constitutional principle of a state under the rule of law which, according to the petitioner, is consolidated in the Preamble to the Constitution.

6. In the petition of the Vilnius Regional Administrative Court it is noted, inter alia, that the parties of the administrative case considered by this court in which it was decided to apply to the Constitutional Court, do not impugn regarding the common and special requirements raised for the persons who are admitted to positions of state servants.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from the representative of the Government, the party concerned, who was A. Kasinskas, were received, in which it is stated that government resolution No. 222 of 27 February 2004 is not in conflict with the Constitution and with the articles (paragraphs thereof) of the laws on State Service and Administrative Supervision of Municipalities which are specified by the Vilnius Regional Administrative Court, the petitioner. The position of the representative of the Government, the party concerned, is based on the following arguments.

1. Government resolution No. 222 of 27 February 2004 was adopted without violating Article 3 of the Law on Administrative Supervision of Municipalities, Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of the Law on State Service, thus, it is not in conflict with Item 2 of Article 94 of the Constitution.

1.1. According to the representative of the Government, the party concerned, the list of the grounds based on which a person may not be admitted to the state service which is set forth in Paragraph 3 of Article 9 of the Law on State Service is not finite; such grounds may be provided also by other laws; it is obvious from Paragraph 6 of this article, in which it is prescribed that “the procedure for admission into the position of a state servant is established by this Law, other laws and the procedure approved by the Government”. Thus, it is by no means possible to state that the Law on State Service and the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Candidate to the Government Representatives” of 27 February 2004 are the only legal acts which regulate the relations of appointing the government representative in the county.

1.2. While adopting the impugned resolution, the Government had to heed Paragraphs 1 and 2 of Article 9 of the Law on Prevention of Corruption: under Paragraph 2, the provision with information about the person who seeks to hold office in the state institution to which he is appointed, inter alia, by the Government, is obligatory, and Paragraph 1 enshrines the objective that “only the persons of impeccable reputation would work in the state or municipal institution”; this objective should be applied not only to the state servants of personal confidence, but to all state servants in general. The non-application of the Law on Prevention of Corruption in this case would mean that in the hierarchy of the legal sources, the legal force of the norms of this law is lower than the legal force of the norms of the Law on State Service.

1.3. In the discussed case, the relations of admission into the state service are “multilayer”: first, they are the relations of state service which are regulated by the Law on State Service and the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Candidate to the Government Representatives” of 27 February 2004; second, they are the relations of adoption of Government decisions which are regulated by the Law on the Government and the Work Regulations of the Government approved by government resolution; third, they are the relations of the restraint of unlawful deeds (corruption) in the state service which are regulated by the Law on Prevention of Corruption. While adopting the impugned resolution, the Government had to follow all the said legal acts and not only the Law on State Service.

1.4. If the government representative in the county was appointed to office only upon establishing that he meets the common and special requirements raised for the state servants and that he won the competition, the application of the Government to the Special Investigation Service (hereinafter also referred to as the SIS) regarding the provision of information and the answer to it would only be official and would not create any legal or factual consequences; thus, the provision of Paragraph 3 of Article 5 of the Constitution that state institutions shall serve the people would remain not implemented (according to A. Kasinskas, it would be in conflict with Paragraph 1 of Article 6 of the Constitution, which prescribes that the Constitution shall be an integral and directly applicable act), and the human and financial resources of the state would be wasted.

1.5. The fact that Paragraph 9 of Article 9 of the Law on Prevention of Corruption does not include the unambiguous obligation not to admit to the state service the person regarding which the information which raises doubts about the person’s credibility has been provided is not in conflict with the Constitution, as the Government has been reserved discretion to assess the material regarding the credibility of the candidate which has been provided to it while taking account of the significance of the said material to the state service.

2. Government resolution No. 222 of 27 February 2004 is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 33 of the Constitution as the provisions of these paragraphs do not mean that in all cases identical conditions must be applied to all persons who enter all positions in the state service; such requirement would be groundless as the state servants do their job which is related to very different spheres of the public life and economy. The said provisions also do not require the fact that a person, who meets the conditions for entering the state service which are established by law and who has fulfilled the entrance procedures, would be unconditionally admitted to the state service: they enshrine only all persons’ equality while entering the state service; thus, equal conditions for participating in the competition should be created for all the persons who seek to hold office in the state service, they all must be assessed equally, the laws, in respect with all of them, must be applied equally. Whoever wins the competition to the position of the government representative in the county, he must be applied the Law on Prevention of Corruption.

In addition, the provision “the Constitution shall be an integral and directly applicable act” of Paragraph 1 of Article 6 of the Constitution requires that while assessing the compliance of the impugned government resolution with Paragraph 1 of Article 29 and Paragraph 1 of Article 33 of the Constitution, one would also take account of the provision “State institutions shall serve the people” of Paragraph 3 of Article 5 of the Constitution; the state servant must be unselfish and must seek to serve the people as best as possible, to put the interests of all society and the state in the first place. Namely because of that fact, the laws provide for the possibility (and in the case of certain positions of state servants—also the duty) before admitting the person to the state service to check how he heeded the public interests in the past, whether he did not raise his personal wellbeing above such interests.

3. According to the representative of the Government, the party concerned, the impugned government resolution is not in conflict with the constitutional principle of a state under the rule of law, as while adopting it, the Government did not have the right to choose to implement the provisions of certain laws or not to implement them—it must according to its competence apply all the norms of the Constitution and laws.

V

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations (including annexes) from V. Sarapinas, the Chancellor of the Government, were received.

VI

At the hearing of the Constitutional Court, the representative of the Government, the party concerned, who was A. Kasinskas, virtually repeated the arguments set forth in his written explanations, as well as presented additional explanations and additional documents which have been included in this constitutional justice case.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the Government Resolution (No. 222) “On the Candidate to the Government Representatives” of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with Article 3 of the Law on Administrative Supervision of Municipalities, and with Paragraph 3 of Article 9, Item 3 of Paragraph 2 of Article 10 and Article 13 of Law on State Service.

2. On 23 October 2003, the Prime Minister issued the Ordinance (No. 242) “On Granting Empowerment”, in which taking account of “the fact that there is no appointed government representative for the Utena County and that the term of office of other government representatives appointed to office by the Government Resolution (No. 1335) “On Appointing Government Representatives” of 2 December 1999 is over under the procedure established by the legal acts”, V. Bulovas, the Minister of the Interior, was empowered, under the procedure established by law, to select the candidates to the positions of the government representatives and to present a draft government resolution on their appointment.

3. It is obvious from the administrative case considered by the Vilnius Regional Administrative Court in which it was decided to apply to the Constitutional Court, from the written explanations (including annexes) of V. Sarapinas, the Chancellor of the Government, and from the written explanations of A. Kasinskas, the representative of the Government, the party concerned, as well as from the explanations and documents provided by him at the Constitutional Court’s hearing, that:

on 30 October 2003, in the official gazette “Valstybės žinios” annex titled “Information Bulletin”, No. 82, the Ministry of the Interior (hereinafter also referred to the MI) announced the competition for, inter alia, the position of the government representative in the Marijampolė County;

three applicants had submitted their applications to participate in the competition for the position of the government representative in the Marijampolė County (head of institution) (Protocol No. 195 on the competition of applicants for the position of the state servant of the MI);

the competition of the applicants to the position of the state servant took place on 28 November 2003, at the Ministry of the Interior; two candidates participated in the competition—K. Kubertavičius and P. Uleckas (Protocol No. 195 on the competition of applicants for the position of the state servant of the MI);

the commission composed by Order of the Minister of the Interior No. 1V-408 of 18 November 2003, assessed the knowledge of P. Uleckas by 16 points, while the knowledge of K. Kubertavičius—by 14.7 points; the competition was won by P. Uleckas who reached the best result (Protocol No. 195 on the competition of applicants for the position of the state servant of the MI);

on 4 December 2003, the Chancellor of the Government applied in writing to the SIS with a request to provide information about the persons who seek to hold the position of the government representative in the Marijampolė County, inter alia, about P. Uleckas who sought to hold the position of the government representative in the Marijampolė County (the explanations of A. Kasinskas, the representative of the Government, the party concerned, at the Constitutional Court’s hearing);

on 5 December 2003, Vice-minister of the Interior Z. B. Kazakevičius, by his cover letter-proposal No. 1D-6961-(31) “On Draft Resolutions of the Government” provided the Government, inter alia, with a draft Government Resolution “On Appointing the Government Representative in the Marijampolė County” (in the Office of the Government, it was given reference No. 3-1724N); the said draft was set forth as follows:

Pursuant to Item 14 of Article 22 of the Law on the Government of the Republic of Lithuania (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities (Official Gazette Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 3 of Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on State Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), the Government of the Republic of Lithuania resolves:

To appoint Paulius Uleckas to the position of the government representative in the Marijampolė County (A level 17 category) as from 15 December 2003.”;

on 8 December 2003, at the Office of the Government, an unsigned, i.e. anonymous, complaint dated 2 December 2003 (Registration No. 3487 given by the Office of the Government) was received with address to the Prime Minister A. M. Brazauskas, Minister of the Interior V. Bulovas and Member of the Seimas A. Rimas, in which it was specified that its authors are “14 employees of the Marijampolė Municipality” who “have worked with P. Uleckas since the restoration of Independence” (P. Uleckas was the administrator of the Marijampolė Municipality); the complaint states that P. Uleckas is dishonest (and sets forth certain circumstances which, according to the author or authors of the complaint, attest the said person being dishonest, and which are related to P. Uleckas’ work while managing the administration of the Marijampolė Municipality, namely abusing the official position while going on business trips and raising the qualification, installation of the private house using the funds which were allocated to the maintenance of the municipality building, protection of certain enterprises by buying telephones, computer equipment and by repairing the service car, being drunk at work), as well as expresses the belief that P. Uleckas is not suitable to hold the office of the government representative for the Marijampolė County;

on 9 December 2003, Letter No. 2.5-01-3786 of 9 December 2003 (Registration No. 13975 given by the Office of the Government) of Ž. Pacevičius, First Deputy Director of the SIS addressed to the Chancellor of the Government A. Z. Kaminskas was received at the Office of the Government, in which it was specified, inter alia, that the SIS does not conduct the operational investigation regarding P. Uleckas who seeks to hold the position of the government representative for the Marijampolė County; the SIS also informed that it “applied to other law enforcement and control institutions regarding the presentation of the held information concerning the examined persons. Upon receiving the information about the examined persons, we will inform additionally.”;

on 10 December 2003, the Office of the Government introduced P. Uleckas with the notice of 4 December 2003 about the adopted decision to request information (No. 39-8830) and with the notice of 9 December 2003 about the provided information (No. 2.5-01-3786);

the appointment of the government representative for the Marijampolė County was considered at the 10 December 2003 Government sitting; in the material of this sitting of the Government, the said complaint of “14 employees of the Marijampolė Municipality” (Registration No. 3487 given by the Office of the Government) was enclosed to a draft Government Resolution (No. 3-1724N) “On Appointing the Government Representative in the Marijampolė County”; it was decided to postpone the consideration of the appointment of the government representative for the Marijampolė County (Protocol No. 51 of the 10 December 2003 Government sitting);

by his Letter No. 39-9033 of 10 December 2003 “Regarding P. Uleckas”, Chancellor of the Government A. Z. Kaminskas applied to the SIS and requested, “under the procedure of urgency, an investigation regarding the letter of the employees of the Marijampolė Municipality of 2 December 2003 regarding the lodged suspicions against Paulius Uleckas for abusing the official position and to inform the Office of the Government about the results of this investigation” (the said anonymous complaint was enclosed to this letter);

on 2 January 2004, the Office of the Government received Letter No. 2.5-01-3994 “On Investigating an Anonymous Complaint” of the SIS Director V. Junokas of 29–30 December 2003 (Registration No. 1 given by the Office of the Government ), whereby the Office of the Government was informed that while investigating the said complaint of “14 employees of the Marijampolė Municipality”, “no data were received that P. Uleckas abused the official position while going on business trips and raised the qualification, installed his private house using the funds which were allocated to the maintenance of the municipality building, protected certain enterprises by buying telephones, computer equipment and by repairing the service car, and that he was drunk at work”, as well as that from 1 May 1995 till 25 February 2003 “The Marijampolė Municipality Controller’s (Ombudsman) Office did not establish any violations of lawfulness or expedience of the use of municipality’s property or the property transferred to the municipality related to the activity of the administrator of the municipality P. Uleckas”; by the said letter of the SIS Director, the Office of the Government was informed, inter alia, that: (1) in 2002, the Marijampolė Municipality (at that time, P. Uleckas was the head of its administration), without public procurement tender purchased various computer technology for LTL 98,186.36, i.e. for more than LTL 75,000, even though, according to the SIS Director, under Item 1 of Paragraph 1 of Article 1 of the Law on Public Procurement of the Republic of Lithuania, it had to announce a public procurement tender, thus, on 24 December 2003, the SIS sent a letter to the Public Procurement Office under the Government of the Republic of Lithuania (hereinafter referred to as the Public Procurement Office) and requested it to establish whether the administration of the Marijampolė Municipality, by purchasing without the public procurement tender various computer technology for LTL 98,186.36, did not violate the provisions of the Law on Public Procurement; (2) at the moment when P. Uleckas was the head of the administration of the Marijampolė Municipality, 3 mobile phones which had been purchased, under preferential conditions, from the joint stock company (hereinafter referred to as the JSC) “Omnitel” were entered into the books, however, “the number of telephones which were actually purchased under the preferential conditions is unknown for the administration of the municipality”, thus, on 22 December 2003, the SIS sent a letter to the Customer Service Centre of the JSC “Omnitel” and asked to inform about the number of the mobile phones which had been purchased with the offered discounts by the Marijampolė Municipality; (3) on 23 December 2003, the SIS sent a letter to the Centre of Initial Medical Care of Marijampolė and asked to inform whether P. Uleckas was cured at this centre from 1 January 2000 till 25 February 2003; (4) upon receiving the answers from the Public Procurement Office, Customer Service Centre of the JSC "Omnitel” and the Centre of Initial Medical Care of Marijampolė, “the question regarding any further investigation of the complaint will be resolved”;

under Annex 1 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the Office of the Government did not inform P. Uleckas that one had applied to the SIS and requested an investigation regarding the “anonymous complaint of 14 employees of the Marijampolė Municipality”;

by his application “Regarding the Admission to Work” of 22 January 2004, P. Uleckas applied to the Chancellor of the Government A. Z. Kaminskas and specified that even though on 28 November 2003 he won the competition for the position of the government representative for the Marijampolė County, the employer did not appoint him to the said position and did not inform about the reasons of such not appointing, he also requested an answer in writing why he is not appointed to the said position; there was no answer to this letter (the explanations of A. Kasinskas, the representative of the Government, the party concerned, at the Constitutional Court’s hearing);

on 30 January 2004, Letter of the SIS Director V. Junokas No. 4-1-406 (Registration No. 1294 given by the Office of the Government) of 29 January 2004 was received at the Office of the Government, by which the Chancellor of the Government was informed, inter alia, that (1) the Public Procurement Office, having verified the lawfulness of the procedures of purchase of the computer equipment carried out by the administration of Marijampolė Municipality in 2002, and of petrol, gas oil, other light and medium petroleum products carried out in 2003, established that the administration of the Marijampolė Municipality headed by P. Uleckas, in 2002, while purchasing the computer equipment, software and while carrying out the procedures of purchase of petrol, gas oil, other light and medium petroleum products, violated Item 1 of Paragraph 1 of Article 1, Paragraph 1 of Article 6 and Paragraph 1 of Article 35 of Law on Public Procurement, however, that it may not hold the responsible persons administratively liable for the purchase of the computer equipment and software carried out in 2002 by the administration of the Marijampolė Municipality and for the termless agreement regarding the purchasing of fuel of 2000–2001 which were drawn without following the requirements of the Law on Public Procurement, because the term of statutory limitation had passed; (2) the long-term assets which had been purchased by the administration of Marijampolė Municipality headed by P. Uleckas from the JSC “Omnitel” from 7 April 2001 till 25 February 2003 was not accounted so as it is established in Item 28 of the Procedure for Accounting the Establishments Financed by the Budget which was approved by the Order of the Minister of Finance of the Republic of Lithuania (No. 70) “On Approving the Procedure for Accounting the Establishments Financed by the Budget” of 16 March 2001; (3) “at present moment”, the SIS “is deciding the question on the beginning of the pre-trial investigation under Article 229 (Inappropriate performance of duties of a state servant or a person likened to him) of the Criminal Code of the Republic of Lithuania”;

P. Uleckas has not been familiarised with this letter under Paragraph 7 of Article 9 of the Law on Prevention of Corruption and Annex 2 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 (explanations of A. Kasinskas, representative of the Government, the party concerned, at the Constitutional Court’s hearing);

by his complaint “On the Procrastination of a State Administrative Subject to Perform the Actions within Its Competence” of 5 February 2004, P. Uleckas applied to the Vilnius Regional Administrative Court with a request to oblige the Government in not less than 14 days as from coming into force of the decision to appoint him to the position of the government representative for the Marijampolė County;

on 23 February 2004, Letter of the SIS Director V. Junokas No. 4-1-697 (Registration No. 2414 given by the Office of the Government) of 20 February 2004 was received at the Office of the Government, by which the Chancellor of the Government was informed, inter alia, that when the Marijampolė Municipality purchased the mobile phones or their accessories while the discount prices were applied (because many subscribers were registered on behalf of the Marijampolė Municipality), the invoices of the value added tax were drawn namely on behalf of this municipality, however, the mobile phones were not accounted as the assets of the Marijampolė Municipality, “since one paid for them from the personal funds of the employees but not from the funds of the Marijampolė Municipality”, and most subscribers (who worked in the enterprises, institutions of this municipality or who were related to it otherwise) paid for the conversations from their own funds; the phones were used for administrative purposes; “no objective data regarding the possible criminal deeds of the employees of the administration of the Marijampolė Municipality or big damage for the municipality performed by them” were received, thus, on 17 February 2004, at the Kaunas Department of the SIS, pursuant to Article 168 of the Code of Criminal Procedure of the Republic of Lithuania, a resolution was adopted to refuse to start the pre-trial investigation;

P. Uleckas has not been familiarised with this letter under Paragraph 7 of Article 9 of the Law on Prevention of Corruption and Annex 2 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 (explanations of A. Kasinskas, representative of the Government, the party concerned, at the Constitutional Court’s hearing);

on the same day, i.e. 23 February 2004, when Letter of the SIS Director V. Junokas No. 4-1-697 of 20 February 2004 was received, the appointment of the government representative for the Marijampolė County was considered at the meeting of ministers and it was decided “to approve of the provision to consider this question <…> at the 25 February 2004 Government sitting” (Protocol No. 9R of the 23 February 2004 meeting of the ministers);

on 25 February 2004, the Minister of the Interior V. Bulovas, by his cover letter-proposal No. 1D-1037-(31) “On Draft Resolution of the Government” provided the Government with draft Government Resolution “On the Candidate to the Government Representatives” (Registration No. 4-231N given by the Office of the Government) and requested it to consider this draft in the nearest sitting of the Government; it was not specified in the said cover letter-proposal why this draft is submitted for consideration under the procedure of urgency; this draft was set forth as follows:

Pursuant to Item 14 of Article 22 of the Law on the Government of the Republic of Lithuania (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities (Official Gazette Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6 of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on State Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), and Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297), the Government of the Republic of Lithuania resolves:

1. Not to appoint Paulius Uleckas to the position of the government representative for the Marijampolė County.

2. To empower the Minister of the Interior Virgilijus Bulovas to select, under procedure established in legal acts, an applicant to the position of the government representative for the Marijampolė County, and to submit a draft resolution to the Government of the Republic of Lithuania concerning his appointment”;

no annexes were attached to the cover letter-proposal “On Draft Resolution of the Government” the Minister of the Interior V. Bulovas of 25 February 2004, in which there would be any information from which one could decide about credibility or non-credibility of P. Uleckas (and in the cover letter-proposal itself, there were no links to any references of such information); it was only noted in it that “the question on appointing P. Uleckas as the government representative for the Marijampolė County was considered during the 10 December 2003 Government sitting and it was postponed upon deciding to carry out an investigation regarding the possible abuse of the official position by P. Uleckas”;

in Protocol No. 8 of the 25 February 2004 Government sitting, there is an entry that P. Uleckas was invited to this Government sitting; there is no entry in the protocol that P. Uleckas took the floor during the sitting;

the draft government resolution submitted by the Minister of the Interior V. Bulovas was considered under the procedure of urgency at the 25 February 2004 Government sitting, and it was decided to “adopt the draft resolution prepared by the Ministry of the Interior” (Protocol No. 8 of the 25 February 2004 Government sitting); the said government resolution was set forth as follows:

Pursuant to Item 14 of Article 22 of the Law on the Government of the Republic of Lithuania (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2843; 2002, No. 41-1527), Paragraph 2 of Article 2 and Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on Administrative Supervision of Municipalities (Official Gazette Valstybės žinios, 1998, No. 51-1392; 2002, No. 127-5748), Item 6 of Paragraph 3 of Article 9 and Item 3 of Paragraph 2 of Article 10 of the Republic of Lithuania’s Law on State Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; 2003, No. 17-705, No. 112-4993), and Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297), the Government of the Republic of Lithuania resolves:

1. Not to appoint Paulius Uleckas to the position of the government representative for the Marijampolė County.

2. To empower the Minister of the Interior Virgilijus Bulovas to select, under procedure established in legal acts, an applicant to the position of the government representative for the Marijampolė County, and to submit a draft resolution to the Government of the Republic of Lithuania concerning his appointment”.

4. Summing up (inter alia, taking account of the fact that in the preamble to the impugned government resolution there is a reference to Paragraph 9 of Article 9 of the Law on Prevention of Corruption (in which it is prescribed that “the information provided shall be one of the grounds for judging about the credibility of a person seeking or holding a position at a state or municipal institution” and that “the person who has lost credibility may be refused appointment at a state or municipal institution or may be released from office in accordance with the procedure set out in the Law on the State Service and other laws”)), it needs to be held that the official legal ground for not appointing P. Uleckas to the office of the government representative for the Marijampolė County was the fact that the Government assessed the information regarding P. Uleckas’ activity when he was heading the administration of the Marijampolė Municipality which was received from the SIS as permitting stating that P. Uleckas lost his credibility.

5. It needs also to be mentioned that even though the impugned government resolution was formalised as of the date of 27 February 2004, the sitting of the Government, during which this government resolution was adopted, took place on 25 February 2004.

Under Article 95 of the Constitution, the government resolutions shall be adopted at its sittings by majority vote of all the members of the Government (Paragraph 1), they shall be signed by the Prime Minister and the Minister of a corresponding branch (Paragraph 2). The Constitution does not expressis verbis establish the time period within which the adopted government resolution must be signed and officially published. The time period in which the resolution adopted by the Government must be signed and officially published must be established by law (the Constitutional Court’s ruling of 27 June 2007).

Such practice of publishing government resolutions or legal acts of other collegial lawmaking subjects when the legal act is formalised (published) not as of the date of the sitting of the Government or other collegial lawmaking subject during which it was adopted, but as of any other later date (for example, of signing) is deficient.

However, the relation of the Work Regulations of the Government of the Republic of Lithuania (with subsequent amendments) as confirmed by the Government Resolution (No. 728) “On the Confirmation of the Work Regulations of the Government of the Republic of Lithuania” of 11 August 1994, on which such lawmaking practice was grounded—the formalisation of the government resolution as of the date of its signing—at the moment when the impugned government resolution No. 222 of 27 February 2004 was adopted with the Constitution is not a matter of investigation in the constitutional justice case at issue.

In this context, it needs also to be mentioned that the legal grounds of such practice was abolished when on 15 January 2007, the Government adopted the Resolution (No. 34) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 728) ‘On the Confirmation of the Work Regulations of the Government of the Republic of Lithuania’ of 11 August 1994” and established (as from 1 February 2007) that the date of the sitting during which the government resolution was adopted shall be specified in the government resolution (Item 91 (wording of 15 January 2007) of the Work Regulations of the Government).

However, the fact that in the legal act of the Government or other collegial lawmaking subject, not the date of the sitting during which this legal act was adopted, but a later date (for example, of signing) is specified, in itself does not mean that only on this ground one may question the compliance of this legal act with the Constitution as to its content.

II

1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether government resolution No. 222 of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution, with Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities, with Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003), Item 3 of Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) and Article 13 (wording of 23 April 2002) of the Law on State Service.

2. It is obvious from the arguments of the petition of the petitioner that the petitioner doubted whether the impugned government resolution is not in conflict:

with not entire Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities, but only with Paragraph 1 of this article (wording of 10 December 2002), in which it is prescribed that “the government representative is a state servant—head of institution—and he shall be appointed to office for four years and released from office under the procedure established in the Law on State Service. Along with this Law, also the Law on State Service shall establish the legal status of the government representative”, and with Paragraph 3 of the same article, in which it is prescribed that “a person, who has a higher university education or an education likened to it and not less than five years of work experience in the field of public administration or who has higher university education in the field of public administration and not less than three years of work experience in the field of public administration may be appointed as the government representative”;

with not entire Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003) of the Law on State Service, but only with the provision of Paragraph 3 (wording of 3 April 2003) of this article that “a person may not be admitted to the office of the state servant in the following cases: <…> (6) in the cases specified in other laws” i.e. with Item 6 (wording of 23 April 2003) of this paragraph (wording of 3 April 2003);

with the provision that “the Government shall admit <…> (3) the government representative, county chief and deputy county chief to the positions of the heads of institutions” of Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) of the Law on State Service, i.e. with Item 3 of the said paragraph (wording of 11 November 2003);

with not entire Article 13 (wording of 23 June 2002) of the Law on State Service, but only with Paragraph 2 of this article (wording of 23 April 2002), in which it is prescribed that “a person, who is admitted to the position of the head of institution by way of competition, shall be examined in writing (test) and orally (conversation)” and that “during the conversation, a person’s abilities to perform the functions established in the description of the position of the state servant shall be verified.”

3. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the impugned government resolution is not in conflict, inter alia, with the principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution.

The Constitutional Court has held in its acts more than once that the constitutional principle of a state under the rule of law may not be construed as the one which is entrenched only in the Preamble to the Constitution, nor may it be identified only with the declared therein striving for an open, just, and harmonious civil society and state under the rule of law; that the constitutional principle of a state under the rule of law integrates various values enshrined in, and protected and defended by the Constitution, including those which are expressed by the aforementioned striving. In the acts of the Constitutional Court, it has been also more than once held that an investigation into the compliance of legal acts (parts thereof) with the enshrined-in-the-Preamble-to-the-Constitution striving for an open, just, and harmonious civil society and state under the rule of law implies an investigation into their compliance with the constitutional principle of a state under the rule of law.

III

1. According to the Vilnius Regional Administrative Court, the petitioner, the impugned government resolution was adopted while applying the Law on Prevention of Corruption (namely Paragraph 9 of Article 9 thereof), following which, it is not possible to complete the procedure of the competition and not to admit the person who won this competition to the position, as this law (Paragraph 9 of Article 9 thereof) is not a legal act which regulates the legal relations of the state service (i.e. is not a special legal act); thus, according to the Vilnius Regional Administrative Court, the petitioner, it was not possible not to appoint P. Uleckas to the position of the government representative for the Marijampolė County while following Paragraph 9 of Article 9 of the Law on Prevention of Corruption.

2. In the petition of the Vilnius Regional Administrative Court, the petitioner, it is noted, inter alia, that the parties to the administrative case in which it was decided to apply to the Constitutional Court considered by this court did not impugn the common and special requirements raised before the persons who are admitted to the positions of the state servants. The Vilnius Regional Administrative Court, while considering the administrative case subsequent to the complaint of P. Uleckas, did not verify the information received from the SIS regarding the activity of P. Uleckas while he was heading the administration of the Marijampolė Municipality, upon receiving which the Government decided not to appoint him to the position of the government representative for the Marijampolė County, nor did it establish and investigate any factual circumstances which would allow the assessment of the truth and credibility of the said information, the lawfulness of the procedure of its collection, etc. Thus, the Vilnius Regional Administrative Court, while considering the administrative case subsequent to the complaint of P. Uleckas, neither expressis verbis denied, nor expressis verbis confirmed the said information and it did not formulate any direct position regarding this information.

3. In the opinion of the petitioner, this government resolution is in conflict with the Constitution (and with the articles (paragraphs thereof) of the laws specified by the petitioner) namely because of the fact that the procedure of adoption of such government resolutions was violated: if, purportedly, one had followed the laws (and the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002), it would not have been possible to adopt such a government resolution.

4. It needs to be held that the doubt of the Vilnius Regional Administrative Court, the petitioner, regarding the compliance of the impugned government resolution with the Constitution and with the articles (paragraphs thereof) specified by it is based exceptionally on the fact that, in the opinion of the petitioner, when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said office, could not apply to him the Law on Prevention of Corruption, namely Paragraph 9 of Article 9 thereof, under which, a person, who lost his credibility, may be not admitted to state service.

It needs to be emphasised that the Vilnius Regional Administrative Court, the petitioner, does not impugn the compliance of government resolution No. 222 of 27 February 2004 with the Constitution and laws in any other aspects, inter alia, in the aspect whether while not appointing P. Uleckas to the position of the government representative for the Marijampolė County subsequent to Paragraph 9 of Article 9 of the Law on Prevention of Corruption, he was reasonably considered as having lost his credibility.

It needs also to be mentioned that the Vilnius Regional Administrative Court, the petitioner, does not raise the question of the compliance of the legal acts which regulate the grounds and/or the procedure of verification of credibility of the person who seeks to hold the office with the Constitution (the compliance of the substatutory legal acts—also with the laws) too.

5. Such a position of the Vilnius Regional Administrative Court, the petitioner, should be regarded as a doubt whether government resolution No. 222 of 27 February 2004 is not in conflict with the Constitution and the specified articles (paragraphs thereof) to the extent that in the preamble of this government resolution a reference is made to Paragraph 9 of Article 9 of the Law on Corruption, namely the provision “Pursuant to <…> Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297)”.

6. On the other hand, it is obvious from the said provision of the preamble to the impugned government resolution what was the official legal ground for not appointing P. Uleckas to the position of the government representative for the Marijampolė County, and to empower the Minister of the Interior Virgilijus Bulovas to select, under procedure established in legal acts, an applicant to the position of the government representative for the Marijampolė County, and to submit a draft resolution to the Government concerning his appointment.

Thus, the investigation into the constitutionality of the provision “Pursuant to <…> Paragraph 9 of Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption (Official Gazette Valstybės žinios, 2002, No. 57-2297)” of the Preamble to the impugned government resolution No. 222 of 27 February 2004 in the aspect specified by the Vilnius Regional Administrative Court, the petitioner, and recognising it unconstitutional would also imply the recognition of the whole said government resolution being in conflict with the Constitution.

7. Under the Constitution, the Government of the Republic of Lithuania shall resolve the affairs of state governance at its sittings by adopting resolutions by majority vote of all the members of the Government (Paragraph 1 of Article 95 of the Constitution); the government resolutions shall be signed by the Prime Minister and the Minister of a corresponding branch (Paragraph 2 of Article 95 of the Constitution).

These provisions of the Constitution should be construed in the context of other provisions of the Constitution, inter alia, Article 94 of the Constitution and the constitutional principle of a state under the rule of law.

7.1. Under Item 2 of Article 94 of the Constitution, the Government shall execute laws (as well as resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic).

Taking account of the fact that the Government shall execute laws, resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic, it must follow the procedure for drafting, assessment, coordination, consideration of government resolutions and voting on them which is established by law.

7.1.1. While executing laws (as well as resolutions of the Seimas concerning the implementation of laws, decrees of the President of the Republic), the Government issues substatutory legal acts—resolutions. The Constitutional Court has held that, under the Constitution, all questions of state administration which are within the powers of the Government according to the Constitution and laws, are decided by adopting resolutions, and that the affairs of state administration may not be decided by the Government adopting an act of a different type (the Constitutional Court’s rulings of 29 November 2001, 30 May 2003, and 3 December 2003).

In this context, it needs to be noted that Article 94 of the Constitution, under Item 2 of which the Government shall execute laws (as well as resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic), is set forth not in Chapter I or Chapter XIV of the Constitution for the provisions of which a particularly big constitutional protection has been established and the provisions of which, under Paragraph 2 of Article 148 of the Constitution, may be altered only by referendum, but in Chapter VII.

The provision of the official constitutional doctrine that the Government, while resolving the affairs of state governance, must always adopt resolutions was formulated in the Constitutional Court jurisprudence, inter alia, the constitutional justice cases in which it was investigated whether the legal acts (paragraphs thereof) which had been issued yet before 14 August 2004, when the Republic of Lithuania Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” which was adopted on 13 July 2004 came into force, whereby the membership of the Republic of Lithuania in the European Union was approved in a constitutional manner (the Constitutional Court’s rulings of 13 December 2004, 14 March 2006, and 27 June 2007) and which, according to Article 150 of the Constitution, is a constituent part of the Constitution, were not in conflict with the Constitution. Upon coming into force of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union”, the formerly formulated official constitutional doctrine of the Government acts is developed in the Constitutional Court jurisprudence while taking account of the fact that Paragraph 4 of this Constitutional Act prescribed that the Government shall consider the proposals to adopt the acts of European Union law following the procedure established by means of legal acts. As regards these proposals, the Government may adopt decisions or resolutions for the adoption of which the provisions of Article 95 of the Constitution are not applicable. Thus, the provisions of the official constitutional doctrine that the Government, while resolving the affairs of state governance, must always adopt resolutions is not applicable to the government resolutions and decisions which are adopted pursuant to Paragraph 4 of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” (the Constitutional Court’s ruling of 27 June 2007).

In the context of the constitutional justice case at issue, it should be noted that this reservation may not be applied to the impugned government resolution No. 222 of 27 February 2004.

7.1.2. The provision of Item 2 of Article 94 of the Constitution that the Government shall execute laws should be construed, inter alia, in the context of the constitutional principle of a state under the rule of law. This principle must be followed both in law-making and in implementation of law (the Constitutional Court’s rulings of 6 December 2000 and 16 January 2006). The essence of the constitutional principle of a state under the rule of law is the rule of law. The constitutional imperative of the rule of law means that the freedom of power is limited by law which must be obeyed by all subjects of legal relations, without excluding the lawmaking subjects (the Constitutional Court’s rulings of 13 December 2004, 29 December 2004, 8 July 2005, and 16 January 2006). The Constitutional Court held in its acts (inter alia, its rulings of 30 December 2003, 5 March 2004, 13 December 2004, 7 February 2005, and 5 May 2007) more than once that the principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts as well, inter alia, the fact that substatutory legal acts may not be in conflict with laws, constitutional laws and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-off (ad hoc) application, or permanent validity. The Constitutional Court also held that in certain cases—directly provided for in the Constitution—if the corresponding relations are not regulated by law (which detail and concretise the constitutional legal regulation), the substatutory legal acts, whereby the institutions implement their particular powers, expressis verbis established and clearly defined in the Constitution, must be issued while directly invoking the Constitution (the Constitutional Court’s ruling of 5 May 2007).

7.1.3. While construing Item 2 of Article 94 of the Constitution, the Constitutional Court has held more than once that under the Constitution, the Government, while adopting legal acts, must follow the valid laws and, while enforcing certain laws, it may not violate other laws; the legal acts adopted by the Government, which are substatutory legal acts, may not contain any legal regulation competing with that established in laws.

7.1.4. In the context of the constitutional justice case at issue, it needs to be noted that, as the Constitutional Court has already held, the duty of the Government to adopt substatutory acts which are necessary so as to implement laws stems directly from the Constitution, while in case of a commissioning by the Seimas to do so, it also stems from the laws and Seimas resolutions concerning implementation of laws (the Constitutional Court’s rulings of 30 October 2001, 18 December 2001, 5 March 2004, and 31 May 2006). However, in its substatutory legal acts the Government does not have to make reference to particular laws, Seimas resolutions or decrees of the President of the Republic, which are being followed by the Government when it adopts a corresponding substatutory legal act; it is important that the Government adopt substatutory legal acts without exceeding its powers, and that these substatutory legal acts be in conformity with the Constitution and laws (the Constitutional Court’s rulings of 18 December 2001, 5 March 2004, and 31 May 2006).

7.1.5. In this context, it needs to be mentioned that as the Constitutional Court held in its ruling of 23 May 2007, should the Government fail to observe laws, the constitutional principle of a state under the rule of law, which implies the hierarchy of legal acts, as well as Item 2 of Article 94 of the Constitution whereby the Government, inter alia, shall execute laws, would be denied.

It needs to be emphasised that the jurisprudence of the Constitutional Court has always been grounded on the principled position that the fact that a government resolution, under the procedure of its adoption, is in conflict with the articles (paragraphs thereof) of the law which establish the requirements for the adoption of such government resolutions, implies that this government resolution is also in conflict with Item 2 of Article 94 of the Constitution; such a government resolution may also be in conflict with other provisions of the Constitution—norms and principles (inter alia, with the constitutional principle of the separation of powers (the Constitutional Court’s ruling of 31 May 2006)). Thus, it was held in the Constitutional Court’s ruling of 28 June 2001 that “having held that the impugned resolution, according to the procedure of its enactment, conflicts with Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), it should be concluded that it is also in conflict with Item 2 of Article 94, Paragraph 1 of Article 33, and Paragraph 2 of Article 120 of the Constitution”.

In addition, in the jurisprudence of the Constitutional Court the principled position is followed that if the legal regulation established in the government resolutions competed with the legal regulation established in the laws or were not grounded on the laws, not only the constitutional principle of a state under the rule of law and Item 2 of Article 94 of the Constitution would be violated but also Paragraph 2 of Article 5 of the Constitution, in which it is prescribed that the scope of power shall be limited by the Constitution; the constitutional principle of the separation of powers could also be violated (the Constitutional Court’s ruling of 31 May 2006).

7.2. Under the Constitution, the Government is bound also by the resolutions that it itself adopted; the Government must follow the requirements set therein until the government resolution is amended or annulled (the Constitutional Court’s rulings of 28 June 2001, 30 October 2001, 8 July 2005 and 23 May 2007). When issuing legal acts, heed must be paid to procedural law-making requirements, including those established by the law-making subject itself (the Constitutional Court’s ruling of 13 December 2004). Failing to heed the resolutions adopted by itself would mean that the Government deviated from the constitutional imperative of the rule of law, thus, also that when a corresponding government resolution was issued, the constitutional principle of a state under the rule of law and Paragraph 2 of Article 5 of the Constitution in which it is prescribed that the scope of power shall be limited by the Constitution, were violated.

8. While deciding subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, whether government resolution No. 222 of 27 February 2004 is not in conflict with the Constitution and the articles (paragraphs thereof) of the laws specified by it:

one should first of all elucidate whether when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said position, had the powers, under the Constitution and laws, to verify his credibility (inter alia, by asking for information from the SIS) and when it decided that P. Uleckas had lost his credibility, whether it could apply Paragraph 9 of Article 9 of the Law on Prevention of Corruption, under which, a person, who lost his credibility may be not admitted to state service;

if it were held that the Government had the said powers, one must elucidate, whether while verifying the credibility of P. Uleckas, the procedure of verification of the credibility of a person, who seeks to hold the office in a state or municipal institution established by law was not violated, whether one followed the requirements of the due process of law which stem from the Constitution.

9. It was said that the Vilnius Regional Administrative Court, the petitioner, does not impugn the compliance of government resolution No. 222 of 27 February 2004 with the Constitution and laws, inter alia, in the aspect whether while not appointing P. Uleckas to the position of the government representative for the Marijampolė County subsequent to Paragraph 9 of Article 9 of the Law on Prevention of Corruption, he was reasonably considered as having lost his credibility.

It has been held in this ruling of the Constitutional Court that the Vilnius Regional Administrative Court, while considering the administrative case subsequent to the complaint of P. Uleckas, did not verify the information received from the SIS regarding the activity of P. Uleckas while he was heading the administration of the Marijampolė Municipality, upon receiving which the Government decided not to appoint him to the position of the government representative for the Marijampolė County, nor did it establish and investigate any factual circumstances which would allow the assessment of the truth and credibility of the said information, the lawfulness of the procedure of its collection, etc., this court neither expressis verbis denied, nor expressis verbis approved the said information and it did not formulate any direct position regarding this information.

It needs to be noted that it is a matter of competence of the court which considers an administrative case to assess, whether the information received from the SIS by the Government regarding the activity of P. Uleckas when he was heading the administration of the Marijampolė Municipality which was assessed as permitting stating that P. Uleckas lost his credibility and which was the official legal ground for deciding not to appoint P. Uleckas to the position of the government representative for the Marijampolė County, is truthful and credible and if it is sufficient in order to reasonably state that P. Uleckas lost his credibility.

This will not be investigated in this constitutional justice case.

IV

1. The impugned government resolution No. 222 of 27 February 2004 is an act of application of law which regulated individual relations: it was decided that P. Uleckas shall not be appointed to the position of the government representative for the Marijampolė County and the Minister of the Interior Virgilijus Bulovas shall be empowered to select, under the procedure established in legal acts, an applicant to the position of the Representative of the Government for the Marijampolė County, and to submit a draft resolution to the Government concerning his appointment.

These individual legal relations are relations of the state service, namely the relations linked to entering the state service (in the considered case—the position of the government representative for the Marijampolė County) and to non-appointing the person who won the competition to the corresponding position.

2. The constitutional concept of the state service may be revealed only on the basis of the provisions of the Constitution itself, their content and systemic links between them; the constitutional concept of the state service may not be construed according to the way the state service relations are regulated by law and substatutory act; it is the function of the constitutional jurisprudence and the official constitutional doctrine formulated therein to reveal the content of the constitutional concept of the state service; on the other hand, the legislature enjoys broad discretion to choose and consolidate in laws a certain model of organisation of state service; however, while regulating the relations of state service, the legislature is bound by the constitutional concept of state service and that he must pay heed to the norms and principles of the Constitution; according to their competence, other law-making subjects must pay heed to the constitutional concept of state service while regulating the relations of state service (the Constitutional Court’s rulings of 13 December 2004 and 20 March 2007).

Relations of the state service (in the broadest sense) comprise relations linked with the implementation of the right of the citizen to enter into the state service of the Republic of Lithuania under equal conditions, as well as relations, which arise when the citizen enters into the state service and while he performs his duties at the state service; some other relations, which arise when the person finishes performing his duties at the state service (for example, relations linked with certain restrictions of professional activity for former state servants, with pensions granted and paid to former state servants), are also closely linked with the relations of the state service (the Constitutional Court’s ruling of 13 December 2004).

3. In its acts, the Constitutional Court has formulated a broad official constitutional doctrine of state service.

In the context of the constitutional justice case at issue, in which, subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, it is investigated whether the legal act of the Government, whereby it was decided that a person who won the competition shall not be appointed to the position of the government representative for the Marijampolė County, is not in conflict with the Constitution and with the laws (paragraphs thereof) specified by the petitioner, the following provisions of the official constitutional doctrine of state service formulated, inter alia, in the Constitutional Court’s rulings of 4 March 1999 and 13 December 2004, in which the constitutional concept of the state service is construed relating it with other provisions of the Constitution, should be noted:

the state service is a professional activity of the state servants who comprise a corps of state servants related to guaranteeing the public interest; professional state servants adopt decisions while performing public administration and/or providing public services (or participate in drafting and executing these decisions, coordinating and/or controlling the implementation thereof, etc.), however, they do not exercise functions while exercising state power; state servants are a special social group whose particularity is determined by the purpose of the state service and public significance;

laws and other legal acts must establish such legal status of state servants, which would be in line with the constitutional concept of the state service as a special—remunerated from state (municipal) budget—system of professional activity when adopting decisions in the area of exercising public administration and/or providing public services (or participation in drafting and executing such decisions, coordinating and/or controlling the execution thereof, etc.), which implies, inter alia, internal mobility of the state service as a system, transferability of personal knowledge, skills and experience, and continuity of such an activity while performing state functions and guaranteeing the public interest as well;

the fact that the purpose of the state service is to guarantee, when state and municipal institutions exercise public administration and provide public service, the public interest rather than private interests of the employees engaged in this activity, presupposes a special procedure of forming the state servants as a corps, the specifics of their legal status, and their special responsibility to the society for implementation of functions commissioned to them as well;

one of the elements of the constitutional concept of the state service, and, by the same, one of the requirements which must be observed when organising the state service and regulating the relations of the state service is uniformity of the system of the state service; however, taking account of the variety of state functions which are implemented through respective institutions, the uniformity of the system of the state service does not deny a possibility of regulating certain relations of the state service in a differentiated manner;

the chosen model of the system of the state service, as well as the bases of organisation and functioning, should be established by law;

under the Constitution, the state service is service to the State of Lithuania and the civil Nation, therefore, the state service should be loyal to the State of Lithuania and its constitutional order; it must be organised so that only the people who are loyal to the State of Lithuania and its constitutional order adopt decisions while exercising public administration and providing public service (or participate in drafting and executing these decisions, coordinating and/or controlling the execution thereof, etc.) at state or municipal institutions; the Constitution does not tolerate the situations where any link of the system of the state service, any state or municipal institution or individual state servants act contrary to the interests of the State of Lithuania or violate the constitutional order of the State of Lithuania; only the persons who are loyal to that state and whose loyalty to that state and credibility do not raise any doubts may work in the state institutions;

the constitutional imperative of loyalty of the state service to the State of Lithuania raises special requirements; state servants not only must not violate the Constitution and laws themselves, but also bear the duty to take all the necessary positive actions when protecting the constitutional order of the State of Lithuania;

the state service must act in conformity only with the Constitution and law; every state or municipal institution through which state functions are exercised, every state servant must pay heed to the requirements of lawfulness; state servants must not abuse the powers established for them and not violate the requirements of legal acts; under the Constitution, the legislature has a duty to regulate the relations of the state service, and the system of the state service should function so that not only the liability is established for violations committed while in the state service, but that the persons who committed violations while in the state service would also in reality be brought to justice;

the public interest and not the private interest must dominate in the state service; in the state service the conflict between public and private interests must be avoided and no conditions for the occurrence of such conflicts should be created; the opportunities provided by the state service should not be used for private benefit; when ensuring the public interest, it is essential to avoid unreasonable and unlawful impact by the interest groups, and, even more important, pressure on state servants, who adopt decisions while exercising public administration and providing public services (or participate in drafting and executing these decisions, coordinating and/or controlling the implementation thereof, etc.); under the Constitution, the legislature has a duty to establish by means of legal acts such legal regulation that no legal conditions would be created for state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, to act in the private interests of a group, instead of the interests of the Nation and the State of Lithuania, and use their status for the benefit of their own, their close relatives or other persons;

the necessity to perform public administration and to provide public services constantly and efficiently while ensuring the public interest, the concept of the state service as a professional activity and the requirement of efficiency of the state service result in the requirement for qualification; the state service must be qualified, it must be able to fulfil the tasks commissioned to it; this fact implies quite high (higher than the requirements for other employees) requirements of qualification and professional skills for state servants, especially the officials (first of all for those, who make single-person decisions), as well as the necessity to ensure for these persons, while in service, an opportunity to constantly improve their professional competence;

the constitutional requirements for the state service as a system, in their turn, imply certain constitutionally reasonable requirements for the persons who seek to exercise their constitutional right to enter into the state service of the Republic of Lithuania under equal conditions or who have already exercised this constitutional right of their own, i.e. who have already become state servants; the constitutionally reasonable and necessary guarantees to the persons who enter into the state service of the Republic of Lithuania and guarantees to the state servants are respectively linked with the said constitutional requirements;

it is the constitutional right of the citizen to enter into the state service of the Republic of Lithuania under equal conditions; to the extent that the relations of the state service are linked with human rights and freedoms, they must be regulated by law; the procedural relations of the state service (as well as those related to it) may be regulated by means of substatutory acts, however, this must be done so that there would be no competition with the legal regulation established by law;

the provision “Citizens shall have the right to <...> enter into the State service of the Republic of Lithuania under equal conditions” of Paragraph 1 of Article 33 of the Constitution is linked both as lex specialis and lex generalis with the provision “each human being may freely choose a job and business” of Paragraph 1 of Article 48 of the Constitution; under the Constitution, the person who seeks to implement his constitutional right to work, has the right to decide freely, whether to choose a work in private sector or a private business, or to seek to become admitted to the state service;

the constitutional right of the citizen to enter into the state service of the Republic of Lithuania under equal conditions, as a version of the constitutional right of each person to freely choose a job, especially upon considering the provision “under equal conditions” of Paragraph 1 of Article 33 of the Constitution, should be linked with the constitutional principle of equality of persons (equality of persons before the law, the court and other state institutions and officials); the citizens who seek to become admitted to the state service may not be discriminated, nor they may be granted privileges on the grounds expressis verbis specified in Paragraph 2 of Article 29 of the Constitution or any other constitutionally unjustifiable grounds; the constitutional imperative of equal conditions when entering the state service implies the competition between those who enter it, as well as objective, impartial assessment and selection of those who enter into the state service;

while creating the legal preconditions for implementation of the right to freely choose a job or business, the legislature is empowered, while taking account of the nature of a job, to establish the conditions of implementation of the right to freely choose a job; while doing this, he must observe the Constitution; implementing its obligation to ensure national security and proper guidance of young people, to secure education, credible financial system, protection of state secrets etc., the state is entitled to establish additional, special requirements for those who wish to work in the main areas of economy and business; requirements for professional competence are not in conflict with the human right to freely choose a job or business, either;

certain common requirements—the general conditions of entering the state service—may and must be set for the citizen who enters into the state service, and the person who fails to meet them will not be able to become a state servant; it should be stressed that the said requirements must be clear and common to all those who seek to hold a respective position at the state service, and they must be known in advance to the one who enters into the state service; they must be set by law; the following common requirements—the general conditions of entering into the state service—should be mentioned: loyalty to the State of Lithuania and its constitutional order, knowledge of the Constitution and bases of the legal system (including the catalogue of human rights and freedoms), good knowledge of the state language, absence of the conflict between the position which is sought to be held, and private interests (or removal of such conflict before the persons starts holding the position that has been sought), etc.; moreover, common requirements linked with personal characteristics of the person entering to the state service, his reputation, education, etc. may be established; the constitutionally reasonable general conditions preventing the person from entering into the state service may also be provided for;

the special requirements for the persons striving for particular duties at the state service or a concrete state or municipal institution—special conditions for those who strive for certain duties at the state service—may be established by means of legal acts; these special conditions of entering into the state service may be differentiated according to the content of respective duties at the state service; when setting the said conditions, one must observe the Constitution; these conditions should also be clear and common to everybody who seeks to be admitted to a respective position at the state service, and they must be known in advance to the ones who enter into the state service; the following requirements—the special conditions of entering into the state service—as professional competence, experience, knowledge of languages, special knowledge and skills, etc., as well as the requirements linked with the reputation of the person who enters into the state service, his personal characteristics and others, should be mentioned; when admitting one to a certain position, a great variety of special conditions may be provided for, for example, the ones linked with the health of the person, his physical abilities, relations with other persons, etc.; it should be emphasised that all the established special requirements of entering into the state service must be constitutionally reasonable;

the right of the citizen to enter into the state service of the Republic of Lithuania under equal conditions which is established in Paragraph 1 of Article 33 of the Constitution is not absolute; the state cannot oblige itself and it does not oblige itself to accept each person to work in the state service; the higher the position, the more important the sphere of activity, the bigger the requirements are raised for the persons who hold these positions.

4. These provisions of the constitutional doctrine imply that the legislature not only may but also must establish such legal regulation which would permit verifying the credibility—loyalty to the State of Lithuania, reputation, etc.—of those persons who seek to hold a position in the state service. The credibility of the applicants to the positions at the state service must be verified yet before they start holding office; when the state servants are in office, their credibility may also be verified if reasonable doubts arise.

It needs to be emphasised that such verification of the credibility of persons must be regulated by strictly following the norms and principles of the Constitution; inter alia, the constitutional principle of a state under the rule of law must be followed which implies, among other things, the due process of law.

The basis of the implementation of the said verification of the credibility of the person who seeks to hold a position or holds a position in the state or municipal institution must be established by law; the substatutory legal acts may establish the procedure of implementation of such verification.

5. It should be particularly emphasised that the legal regulation of the relations of verification of the credibility of these persons (a person, who seeks to hold a position in the state service and a person, who already holds such position) must be such that there would be no preconditions created for artificial cavils due to which a person would not be accepted to the state service and a person, who holds a position in the state service, would have to retire, i.e. such that minor, coincidental and similar facts and circumstances would not become the basis for non-credibility of the person who seeks to hold a position or who holds a position in a state or municipal institution, let alone the fact that the credibility of the person would not be stated only by referring only to presumptions.

6. It has been mentioned that, under the Constitution, the state cannot oblige itself and it does not oblige itself to accept each person to work in the state service.

Thus, if there is reasonably stated non-credibility of a person, who seeks for a certain position in the state service, such person may not be accepted to the corresponding position.

7. All the said should also be applied to the persons who seek to hold the position of the government representative.

7.1. The duties of the government representative are expressis verbis enshrined in the Constitution. Paragraph 2 of Article 123 of the Constitution prescribes that the observance of the Constitution and the laws as well as the execution of decisions of the Government by municipalities shall be supervised by the representatives appointed by the Government, and Paragraph 3 of this article—that the powers of the government representative and the procedure of their execution shall be established by law. The Constitutional Court held that under Article 123 of the Constitution, the government representative is the subject exercising local government supervision acts in the name of the Government and subordinate to it (the Constitutional Court’s ruling of 18 February 1998). Establishment of the powers of the government representative is left for the legislature (of course, by paying heed to the Constitution, inter alia, the purpose of the constitutional institute of government representatives and the functions of government representatives which are entrenched in the Constitution); in this area, the legislature enjoys broad discretion, it may establish very varied powers of the government representative (the Constitutional Court’s ruling of 14 April 2006).

7.2. The legislature that enjoys broad discretion to regulate the status and powers of the government representative also enjoys discretion to establish the common and special requirements for the persons who seek this position.

7.3. However, it needs to be emphasised that the legislature not only may but also must establish such legal regulation which would permit verifying the credibility—loyalty to the State of Lithuania, reputation, etc.—of those persons who seek to hold a position in the state service. It is obvious that if there is reasonably stated non-credibility of a person, who applies to the position of the government representative, such person may not be appointed to this position.

In this context, it needs to be noted that the jurisprudence of the Constitutional Court has always been based on the principled position that the government representative must have the confidence of the Government; if the government representative loses the confidence of the Government, he may be dismissed from office (the Constitutional Court’s ruling of 14 April 2006).

V

1. At the time when the impugned Government Resolution (No. 222) “On the Candidate to the Government Representatives” of 27 February 2004 was adopted, the procedure of acceptance to the position of the government representative (head of institution) was regulated by the following:

Article 22 (wording of 16 April 2002) (Item 14 thereof (wording of 10 October 2000)) of the Law on the Government;

Paragraph 2 of Article 2 (wording of 10 December 2002) and Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities;

Paragraph 1 (wording of 23 April 2002), Paragraph 3 (wording of 3 April 2003) and Paragraph 5 (wording of 4 July 2003) of Article 9 (wording of 4 July 2003), Paragraph 2 (wording of 11 November 2003) (Item 3 thereof) of Article 10 (wording of 18 December 2003) and Articles 11 and 13 (wording of 23 April 2002) of the Law on State Service;

the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (with the amendments made by the Government Resolution (No. 1366) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 29 August 2002, the Government Resolution (No. 695) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 3 June 2003, and the Government Resolution (No. 1452) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 25 November 2003).

2. Article 22 (wording of 16 April 2002) (Item 14 thereof is set forth in the wording of 10 October 2000) of the Law on the Government, inter alia, provides: “The Government shall: <…> (14) appoint and release county governors, their deputies and representatives of the Government who exercise administrative supervision of the activities of local authorities; impose disciplinary penalties on them”.

On 14 June 2007, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 9, 13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 31¹, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 44¹, 45 and 46 and the Title of the Fourth Section of the Law on the Government, Paragraph 5 of Article 5 of which amended Item 14 (wording of 10 October 2000) of Article 22 of the Law on the Government and set it forth in a new wording. The Law on Amending and Supplementing Articles 9, 13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 31¹, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 44¹, 45 and 46 and the Title of the Fourth Section of the Law on the Government (with the specified exception) must come into forth on 1 October 2007.

Article 22 (wording of 14 June 2007) of the Law on the Government, inter alia, provides: “The Government shall: <…> (14) appoint and release county governors and their deputies, representatives of the Government, the authorised person of the Government and other state servants and officials established by law and impose official or disciplinary penalties on them”.

3. Paragraph 2 of Article 2 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities provides: “The Government shall assign one representative of the Government to each county.”

Article 3 (wording of 10 December 2002) of this law, inter alia, provides:

1. The government representative is a state servant—head of institution, and he shall be appointed to office for four years and released from office under the procedure established in the Law on State Service. Along with this Law, also the Law on State Service shall establish the legal status of the government representative. <…>

3. A person, who has a higher university education or an education likened to it and not less than five years of work experience in the field of public administration or who has a higher university education in the field of public administration and not less than three years of work experience in the field of public administration may be appointed as a government representative. <…>”

4. Article 9 (wording of 4 July 2003) (Paragraph 1 thereof is set forth in the wording of 23 April 2002, Paragraph 3—in the wording of 3 April 2003 and Paragraph 5—in the wording of 4 July 2003) of the Law on State Service, inter alia, provides:

1. A person, who is admitted to the position of a state servant, must meet the following requirements:

(1) to hold citizenship of the Republic of Lithuania;

(2) to be proficient in the Lithuanian language;

(3) to be not less than 18 years of age and not more than 62 years and 6 months of age;

(4) to have the education necessary to occupy a position of that level in the state service. <…>

3. The following persons shall not be eligible for positions in the state service:

(1) those found guilty, in accordance with the procedure prescribed by law, of a serious or grave crime, or a criminal act against the state service and public interest or any act comprising elements of corruptive nature, and whose conviction has not been spent or expunged;

(2) those who have been deprived by the court of the right to occupy a position in the state service;

(3) those whose spouse, close relative or a person related to him by marriage performs the duties of a public servant in a state or municipal institution or agency in the event that they would be related by direct subordination according to the positions held by them;

(4) those recognised legally incapable in accordance with the procedure prescribed by law;

(5) those who are members of an organisation which is prohibited in accordance with the procedure prescribed by law;

(6) in the cases provided for by other laws. <…>

5. In addition, persons recruited to the state service shall also meet special requirements set out in the job description.”

Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) of the Law on State Service, inter alia, provides: “The Government shall admit <…> (3) the government representative, county chief and deputy county chief to the position of the heads of institutions”.

Article 11 (wording of 23 April 2002) of this law provides:

1. The career state servants shall be admitted to the positions:

(1) through competition;

(2) without competition.

2. A person recruited as career state servant through competition shall be examined in writing (a test) and orally (an interview); in the course of an interview, the ability of a person to perform the functions specified in the job description of the state service shall be assessed. The requirement to have a record of work in the state service shall not apply to a person who is being recruited as a career state servant, except for the cases provided for by other laws.

3. Persons referred to in Paragraph 2 of Article 43 of this Law may be recruited as career state servants without competition. In the event of two or more of such persons, they are examined orally (an interview).

4. A person or a collegiate state or municipal institution that appoints a state servant to office (hereinafter referred to as the “appointing authority”) may publish a notice of competition concerning the recruitment of a career state servant where it has submitted information about the vacant position to the agency for state service management and has not received any information from there about the persons referred to in Paragraph 2 of Article 43 of this Law within 7 working days after submission. The said persons have to be recruited provided that they meet the requirements set out in the job description.”

Article 13 (wording of 23 April 2002) of the Law on State Service provides:

1. Heads of institutions shall be recruited through competition or on the basis of political (personal) confidence in the cases provided for in the laws.

2. A person recruited as head of an institution through competition shall be examined in writing (a test) and orally (an interview); in the course of an interview, the ability of a person to perform the functions specified in the job description of the state service shall be assessed.”

5. Item 14 (wording of 24 June 2002) of the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (with the amendments made by the Government Resolution (No. 1366) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 29 August 2002, the Government Resolution (No. 695) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 3 June 2003, and the Government Resolution (No. 1452) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 25 November 2003), inter alia, provides: “The personnel council, upon receiving the documents, verifies them and notes in the application of the candidate whether the applicant meets the common requirements of Paragraph 1 of Article 9 of the Law on State Service <…> and special requirements according to the data of the documents provided by the applicant.”

Item 66 (wording of 24 June 2002) of the Procedure for Admission into the Position of a State Servant provides:

A person who won the competition shall be appointed to the position in not less than 3 working days and not more than 14 calendar days upon the end of the competition. Upon the agreement of the person who won the competition and the person who admits the state servant to the position, this term may be extended.”

It needs to be mentioned that the Government Resolution (No. 640) “On Amending the Government Resolution (No. 966) ‘On the Confirmation of the Procedure for Admission into the Position of a State Servant’ of 24 June 2002” of 28 June 2006 amended the title of the said Procedure—it was titled the Description of the Procedure for Organisation of Competitions to the Position of a State Servant (at the same time, the title of the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 was amended—it was titled “On the Confirmation of the Description of the Procedure for Organisation of Competitions to the Position of a State Servant”).

6. The quoted provisions of the laws should be construed in the context of the legal regulation established (at the time when the impugned government resolution was adopted) in other articles (paragraphs thereof) of the Law on the State Service, as well as in other laws such as the Law on Prevention of Corruption and the Republic of Lithuania’s Law on State Secrets and Official Secrets.

One must also take account of the provisions of the substatutory legal acts such as the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002.

6.1. In this context, it needs to be noted that Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law on State Service prescribed: “The procedure for admission into the position of a state servant is established by this Law and other laws and the procedure approved by the Government.”

It needs to be emphasised that the formula “other laws” of Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law on State Service is very capacious. It is a blanket one and may encompass virtually any law (part thereof), inter alia, the Law on Prevention of Corruption (part thereof).

Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 4, 6, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 21, 22, 24, 27, 30, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 49 and 50 of the Law on State Service and Supplementing the Law with Articles 16¹ and 31¹ which was adopted by the Seimas on 22 December 2005 recognised Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law on State Service as null and void, while Paragraph 3 of Article 4 of the Law on Amending and Supplementing Articles 3, 4, 8, 9, 18, 19, 20, 21, 22, 23, 25, 38, 41, 43, 44, 49 and 50 and Appendix of the Law on State Service and Supplementing the Law with Articles 22¹, 48¹ and 50¹ which was adopted by the Seimas on 7 June 2007, supplemented Article 9 (wording of 22 December 2005) of the Law on State Service with Paragraph 6 which prescribed:

If a special requirement to comply with the requirements established in the legal acts which are necessary while issuing the certificate of credibility of the person or the permit to work or to familiarise oneself with classified information is established in the job description of the state servant, the candidate shall be verified, under the procedure established by law, prior to admission of the person who is recognised as the winner of the competition to the position of the state servant or prior to admission of the person to the position of the state servant to which, under the procedure established by this Law, one is admitted without competition. The person is admitted to the position of the state servant upon receiving the conclusion of the competent state institution that this person may be issued the certificate of credibility of the person or the permit to work or to familiarise oneself with classified information.”

Under Paragraph 1 of Article 22 of the Law on Amending and Supplementing Articles 3, 4, 8, 9, 18, 19, 20, 21, 22, 23, 25, 38, 41, 43, 44, 49 and 50 and Appendix of the Law on State Service and Supplementing the Law with Articles 22¹, 48¹ and 50¹, Article 9 (wording of 7 June 2007) of the Law on State Service must come into force on 1 October 2007.

6.2. The requirements to receive the permit to work or to familiarise oneself with classified information are established in the Law on State Secrets and Official Secrets which, at the time when the impugned government resolution was adopted, was set forth in the wording of 25 November 1999 (with subsequent amendments and supplements).

Article 9 (wording of 3 April 2003) (its Paragraph 2 is set forth in the wording of 25 November 1999, Paragraph 3—in the wording of 29 August 2000, and Paragraph 7—in the wording of 25 November 1999)) of this law, inter alia, prescribed:

<…> 2. Only the persons who have special permits may hold the positions related with the use of information which constitute state secret or its protection and familiarise themselves with information which constitute state secret. Candidates to the public service selected to the posts related to use and protection of information considered a State secret, shall be appointed upon having their candidacies verified according to the procedures prescribed by the Government of the Republic of Lithuania or its authorised institution and after being issued permits to work or familiarise themselves with the information which constitutes a state secret. A list of the duties thereof is determined by a subject of secrets itself.

3. Permits to work or to familiarise oneself with the information which constitute a state secret shall be issued by a subject of secrets, upon having verified according to the procedure set by the Government of the Republic of Lithuania or its authorised institution the candidacies of the persons, and after co-ordinating, with the exception of undercover agents of operative activities, with the State Security Department. Prior to adopting a final decision, the institutions verifying the candidacy of a person, may invite him for an interview and if necessary with the consent of the person, perform a polygraph examination or request a written explanation of the person. The subject of secrets shall be prohibited from using permits to work or from familiarising himself with the information which constitutes a state secret, if the State Security Department following Paragraph 5, Article 9 of this Law, objects to it. <…>

7. The permit to work or to familiarise oneself with the information which constitutes a state secret which is marked as “Top Secret” or “Secret” shall be issued for the period of 5 years, and with the information which constitutes a state secret and which is marked as “Confidential”—for the time period of 7 years. After the said time is over, the person shall be verified anew. The person may be verified additionally also before the time periods established in this article are over. <…>”

6.3. Article 9 of the Law on Prevention of Corruption provides:

"1. The provision of information about a person seeking or holding a position at a state or municipal institution shall mean furnishing, at the request of the head of a state or municipal institution or on the initiative of the law enforcement and control institutions, with the exception of positions referred to in Paragraph 2 of this Article, following the procedure laid down in legal acts, of objective and legally gathered information held by the law enforcement and control institutions about a person seeking or holding a position at a state or municipal institution, to the head of the institution who has appointed or is appointing the public servant in question, or to a state politician in order to ensure that only persons of high moral standing hold office at a state or municipal institution.

2. The provision of information shall be obligatory about a person seeking a position at a state or municipal institution which is subject to the appointment by the Seimas, the President of the Republic, the Speaker of the Seimas, the Government or the Prime Minister as well as to the positions of heads of state and municipal institutions or their deputies, vice ministers, secretaries of state at the ministries, secretaries of the ministries, the appointed deputies of mayors of municipalities, heads of establishments subordinate to the ministries and their deputies.

3. A decision to request the Special Investigation Service for the information about a person shall be made by the head of a state of municipal establishment that is appointing or has appointed that person, or a state politician. When making the decision, account shall be taken of the position, character of the duties and the information available about the person seeking or holding a position at a state or municipal institution. The need for such a decision and its motivation shall also be taken into account.

4. A request in writing for the Special Investigation Service for the provision of information about a person holding a position at a state or municipal establishment must be reasoned and substantiated by the information raising serious doubts as to the credibility of the person in question.

5. The information about a person seeking or holding a position at a state or municipal establishment shall be provided by the Special Investigation Service upon the receipt of a request in writing from the head of an establishment which is appointing or has appointed the person in question, or a state politician. The Special Investigation Service shall gather and submit in writing the information it holds as well as the information held by the Police Department under the Ministry of the Interior, the Register of State Servants and, if necessary, the information held by other law enforcement and control institutions. The law enforcement and control institutions may also provide the information available to them to the head of the agency or a state politician on their own initiative.

6. The head of an establishment or a state politician shall, within three days from the performance of the appropriate actions, notify the person about whom information has been provided or requested, of the decision to request information or of the information supplied by the law enforcement or control institutions.

7. The person about whom information has been provided shall be acquainted with the information with the exception of its part which contains classified information.

8. The person in respect of whom a decision to request information was made may contest in court the decision and/or the information provided about him.

9. The information provided shall be one of the grounds for judging about the credibility of a person seeking or holding a position at a state or municipal establishment. The person who has lost credibility may be refused appointment at a state or municipal establishment or may be released from office in accordance with the procedure set out in the Law on the Public Service and other legislation.

10. The head of an institution or a state politician may use the information provided to them only for the purpose of judging about the credibility of the person seeking or holding a position at a state or municipal establishment. The head of an establishment or a state politician shall not pass the information provided to them by the law enforcement and control institutions to third parties, except in circumstances provided for by law.

11. The Special Investigation Service, in compliance with the laws and on the basis of the information specified in the request and provided by the other law enforcement and control institutions, may initiate an investigation in accordance with the procedure established by law.

12. The procedure for the provision of information about a person seeking or holding a position at a state or municipal establishment shall be determined by the Government."

In the context of the constitutional justice case at issue, when summing up the legal regulation established in Article 9 of the Law on Prevention of Corruption, it should be noted that under this article, the purpose of provision of information about a person seeking or holding a position at a state or municipal establishment is to ensure that only the persons of impeccable reputation would work in state service (Paragraph 1); the provision of information shall be obligatory about a person seeking the corresponding position at a state establishment which is subject to the appointment by the Government (Paragraph 2); the information shall be provided by the SIS (Paragraphs 3, 4 and 5); the SIS shall gather and provide in writing the held objective and legally gathered information (Paragraphs 1 and 5); the person about whom information has been provided shall be acquainted with the information with the exception of its part which contains classified information (Paragraph 7); on the grounds of such information, the head of the institution shall decide about the person’s credibility and impeccable reputation (Paragraphs 1 and 9); the procedure for the provision of information about a person seeking or holding a position at a state or municipal establishment must be established by the Government (Paragraph 12).

6.4. The Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 provides, inter alia, that: a decision to request the SIS for the information about a person, including the persons who are verified obligatorily, shall be made by the head of the establishment who is appointing or has appointed that person, or a state politician, inter alia, the decision regarding the person who is appointed to office by the Government—by the Prime Minister (Item 10); the submission of the written request to provide information about the person seeking or holding a position at a state or municipal establishment to the SIS (under Annex 3 of this Procedure) shall be considered as adoption of the decision regarding the request (Item 10); the request to provide information about the person seeking or holding a position at a state or municipal establishment must, inter alia, specify the title of the request, the name and surname of the person about which the information is requested, the title of the position that is held by the person in the state or municipal establishment, the information which is necessary to provide, the deadlines for the provision of information, the necessity and reasonableness of the request, the title of the position, name and surname of the person who adopted the decision to submit the request for provision of information (Annex 3 of this procedure); the written request that the SIS provide information about the person seeking or holding a position at a state or municipal establishment must be reasoned and based on the data which raise reasoned doubts whether the person about whom the provision of information is requested, is credible (Item 11); the verified person has the right, within 3 days from the day of adoption of the decision, to request information, to receive a written notice about the adopted decision to request information (under Item 1 of this procedure) (Item 6.1); the persons seeking or holding a position at a state or municipal establishment about whom the information is provided to the head of an institution or a state politician shall participate in the process of provision of information (Item 3.1); the SIS not later than within 30 calendar days from the day of receipt of the request, shall gather and provide in witting the information held by itself, the Police Department, the Register of State Servants, and, if need may be, by other law enforcement and control institutions (Item 13); the verified person has the right, within 3 days from the day of provision the information about him to the recipient of information, to receive a written notice about the fact that information was provided by law enforcement and control institutions (under Annex 2 of this procedure) (Item 6.2); the verified person has the right, upon signing, to familiarise oneself with the provided information about him, with the exception of the part thereof which is classified (Item 6.3).

It needs to be noted that Item 7 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 establishes what legally gathered objective information the providers of information may provide, namely the legally gathered information about: the previous record of the verified person (Item 7.1) the criminal persecution for an intentional crime against the verified person (Item 7.2); punishment of the verified person for the commission of violations of administrative law (Item 7.3); the fact that the operational investigation is carried out against the verified person (Item 7.4); recognition of the verified person, under the procedure established by law, as incapable or of limited capability (Item 7.5); the verified person’s abuse of narcotic, psychotropic, toxic substances or alcohol (Item 7.6); the fact that when entering the state service, the verified person presented counterfeit documents, concealed or provided the data which contradict the reality because of which he could not be admitted to the office of a state servant (Item 7.7); application of preventive measures to the verified person according to the Republic of Lithuania’s Law on the Restraint of Organised Crime (Item 7.8); the cases when the verified person had violated the requirements of the Republic of Lithuania’s Law on the Adjustment of Public and Private Interests in the State Service (Item 7.9); and the official (disciplinary) penalties—severe reprimand or dismissal from office—imposed on the verified person (Item 7.10).

As it is obvious, the information about the person seeking or holding a position at a state or municipal establishment which is provided to the head of institution from which one may decide about the person’s credibility is defined as a certain final list of the data which includes only certain violations of official discipline, but it includes all (also minor, negligent and those made long time ago) administrative violations of law; it needs also to be noted that the said procedure does not specify that any information regarding the violations of code of ethics made by the verified person must be provided.

It has been mentioned that, under Paragraph 12 of Article 9 of the Law on Prevention of Corruption, the procedure for the provision of information about a person seeking or holding a position at a state or municipal establishment must be determined by the Government.

It was also mentioned that the Vilnius Regional Administrative Court, the petitioner, does not raise the question of the compliance of the grounds of verification of credibility of the person who seeks to hold office and/or the legal acts which regulate the procedure with the Constitution (of the substatutory legal acts—also with the laws) too. The Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 is not a matter of investigation in the constitutional justice case at issue.

6.5. It needs to be noted that at the time when the impugned government resolution was adopted, the Work Regulations of the Government of the Republic of Lithuania (with subsequent amendments and supplements) confirmed by the Government Resolution (No. 728) “On the Confirmation of the Work Regulations of the Government of the Republic of Lithuania” of 11 August 1994 regulated the procedure for drafting, consideration and adoption of draft resolutions of the Government.

VI

On the compliance of the Government Resolution (No. 222) “On the Candidate to the Government Representatives” of 27 February 2004 with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, with Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities, Item 6 (wording of 23 April 2002) of Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003) and Item 3 of Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) and Paragraph 2 of Article 13 (wording of 23 April 2002) of Law on State Service.

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the Government Resolution (No. 222) “On the Candidate to the Government Representatives” of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, with Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities, Item 6 (wording of 23 April 2002) of Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003) and Item 3 of Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) and Paragraph 2 of Article 13 (wording of 23 April 2002) of Law on State Service.

2. It has been held in this ruling of the Constitutional Court that, while deciding subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, whether government resolution No. 222 of 27 February 2004 is not in conflict with the Constitution and the articles (paragraphs thereof) of the laws specified by it, one should first of all elucidate whether, when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said position, under the Constitution and laws, had the powers to verify his credibility (inter alia, by asking for information from the SIS) and when it decided that P. Uleckas had lost his credibility, whether it could apply Paragraph 9 of Article 9 of the Law on Prevention of Corruption, under which, a person, who lost his credibility may be not admitted to state service.

3. It has been mentioned that Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law on State Service provides: “The procedure for admission into the position of a state servant is established by this Law, other laws and the procedure approved by the Government”. It was also mentioned that the formula “other laws” of Paragraph 6 (wording of 4 July 2003) of Article 9 of the Law on State Service is very capacious. It is a blanket one and may encompass virtually any law (paragraph thereof), inter alia, the Law on Prevention of Corruption (paragraph thereof).

4. It was also mentioned that, under Article 9 of the Law on Prevention of Corruption: the purpose of provision of information about a person seeking or holding a position at a state or municipal institution is to ensure that only the persons of impeccable reputation would work in state service (Paragraph 1); the provision of information shall be obligatory about a person seeking the corresponding position at a state institution which is subject to the appointment by the Government (Paragraph 2); the information shall be provided by the SIS (Paragraphs 3, 4 and 5); the SIS shall gather and provide in writing with the held objective and legally gathered information (Paragraphs 1 and 5); the person about whom information has been provided shall be acquainted with the information with the exception of its part which contains classified information (Paragraph 7); on the grounds of such information, the head of the institution shall decide about the person’s credibility and impeccable reputation (Paragraphs 1 and 9); and the person may impugn the decision on the provision of information and the provided information under judicial procedure (Paragraph 8).

In the context of the constitutional justice case at issue, it should be particularly emphasised that Paragraph 2 of the discussed article expressis verbis prescribes that “the provision of information shall be obligatory about a person seeking a position at a state <…> institution which is subject to the appointment by <…> the Government <…>, as well as to the positions of heads of state <…> institutions”.

This provision means that, under Paragraph 2 of Article 9 of the Law on Prevention of Corruption, the Government has the duty to verify the credibility of the person who seeks to hold the office of the government representative (for a certain county).

5. It needs to be noted that under the Law on Prevention of Corruption (Article 9 thereof), one may request information about the verified person both before the competition to the corresponding position and after that competition.

It has been mentioned that, under Item 13 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the SIS not later than within 30 calendar days from the day of receipt of the request, shall gather and provide in witting the information held by itself, the Police Department, the Register of State Servants, and, if need may be, by other law enforcement and control institutions.

In this context it needs to be noted that the time period of 14 calendar days upon the end of competition, in which the person who won the competition shall be appointed to the office (except for the cases when upon the agreement of the person who won the competition and the person who accepts this person to office this term may be extended) established in Item 66 of the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 may also be not sufficient to receive the necessary information about the verified person.

However, as long as this term has not been changed (it is also established in Item 66 of the Procedure for Admission into the Position of a State Servant as approved by the Government Resolution (No. 966) “On the Confirmation of the Procedure for Admission into the Position of a State Servant” of 24 June 2002 (wording of 28 June 2006)), it must be followed; it must also by followed by the law-making subject—the Government—which established this term.

It is particularly important that under Article 9 of the Law on Prevention of Corruption, the head of an institution or a state politician shall, within three days from the performance of the appropriate actions, notify the person about whom information has been provided or requested, of the decision to request information or of the information supplied by the law enforcement or control institutions (Paragraph 6); the person about whom information has been provided shall be acquainted with the information with the exception of its part which contains classified information (Paragraph 7); the person in respect of whom a decision to request information was made, may contest in court the decision and/or the information provided about him (Paragraph 8).

6. It has been mentioned that, under Item 6 (wording of 23 April 2002) of Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003) of the Law on State Service, a person may not be admitted to the office of the state servant “in the cases specified in other laws”.

7. One of such cases is exactly provided for in Paragraph 9 of Article 9 of the Law on Prevention of Corruption, in which, as mentioned before, it is prescribed that “the information provided shall be one of the grounds for judging about the credibility of a person seeking or holding a position at a state or municipal establishment” and that “the person who has lost credibility may be refused appointment at a state or municipal establishment or may be released from office in accordance with the procedure set out in the Law on the State Service and other laws”.

Thus, it needs to be held that under Article 9 (Paragraph 9 thereof) of the Law on Prevention of Corruption, the winner of the competition may be not appointed to the position even if he won the competition if it is reasonably held that the said person lost his credibility.

8. Under Item 2 of Article 94 of the Constitution, the Government shall execute laws and resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic. It has been mentioned that the legislature not only may but also must establish such legal regulation which would permit verifying the credibility—loyalty to the State of Lithuania and reputation—of those persons who seek to hold a position in the state service.

Thus, when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said position, under the Constitution and laws, had the powers to verify his credibility (inter alia, by asking for information from the SIS) and when it decided that P. Uleckas had lost his credibility, it could apply Paragraph 9 of Article 9 of the Law on Prevention of Corruption, under which, a person, who lost his credibility may be not admitted to state service.

9. Having held in this ruling of the Constitutional Court that when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said position, under the Constitution and laws, had the powers to verify his credibility (inter alia, by asking for information from the SIS) and when it decided that P. Uleckas had lost his credibility, it could apply Paragraph 9 of Article 9 of the Law on Prevention of Corruption, under which, a person, who lost his credibility may be not admitted to state service, one must elucidate, whether while verifying the credibility of P. Uleckas, the procedure of verification of the credibility of a person, who seeks to hold a position in the state or municipal institution established by law was not violated, one followed the requirements of the due process of law.

10. While deciding whether while verifying the credibility of P. Uleckas, the procedure of verification of the credibility of a person, who seeks to hold a position in the state or municipal institution established by law was not violated, one followed the requirements of the due process of law, the following circumstances are of essential significance:

the Government had the right to initiate an investigation into the circumstances specified in the anonymous complaint of “14 employees of the Marijampolė Municipality” in various state institutions according to their competence established by law, as well as it could, under the Law on Prevention of Corruption, to request that the SIS provide the held information about the circumstances specified in the mentioned anonymous complaint;

it has been mentioned that in the Preamble to government resolution No. 222 of 27 February 2004, the Government specified that it follows, inter alia, Paragraph 9 of Article 9 of the Law on Prevention of Corruption;

it has been mentioned that in Paragraph 3 of Article 9 of the Law on Prevention of Corruption, a decision to request the SIS for the information about a person shall be made by the head of a state of municipal establishment who is appointing or has appointed that person, or a state politician; under Item 10 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, a decision to request the SIS for the information about a person, including the persons who are verified obligatorily, shall be made by the head of the establishment who is appointing or has appointed that person, or a state politician, inter alia, the decision regarding the person who is appointed to the office by the Government—by the Prime Minister; meanwhile, as it has been held in this ruling of the Constitutional Court, Chancellor of the Government A. Z. Kaminskas applied to the SIS and requested “an investigation, under the procedure of urgency, regarding the letter of the employees of the Marijampolė Municipality of 2 December 2003 regarding the lodged suspicions against Paulius Uleckas for abusing the official position and to inform the Office of the Government about the results of this investigation” (Letter No. 39-9033 of 10 December 2003 “Regarding P. Uleckas” of the Chancellor of the Government);

it has been mentioned that, under Paragraph 2 of Article 9 of the Law on Prevention of Corruption, the provision with information about the person who seeks to hold office in the state institution to which he is appointed by the Government, is obligatory; under Item 11 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the written request that the SIS provide information about the person seeking or holding a position at a state or municipal establishment must be reasoned and based on the data which would raise reasoned doubts whether the person about whom the provision of information is requested, is credible; under Item 10 of the said procedure, the submission of the written request to provide information about the person seeking or holding a position at a state or municipal establishment to the SIS under Annex 3 of this procedure shall be considered as adoption of the decision regarding the request; meanwhile, Letter No. 39-9033 of 10 December 2003 “Regarding P. Uleckas” of the Chancellor of the Government A. Z. Kaminskas (to which the anonymous complaint of “14 employees of the Marijampolė Municipality” was annexed) does not comply with the content and form of Annex 3 of the said procedure—it must specify, as it has been mentioned, inter alia, the title of the request, the name and surname of the persons about which the information is requested, the title of the position that is held by the person in the state or municipal establishment, the information which is necessary to provide, the deadlines for the provision of information, the necessity and reasonableness, the title of the position, name and surname of the person who adopted the decision to submit a request for provision of information—it does not specify the reasons or data which would raise reasonable doubts regarding credibility of P. Uleckas, moreover, one requests an investigation into the information that might be established about the person’s non-credibility and not to provide the information held;

it has been held that under Paragraph 6 of Article 9 of the Law on Prevention of Corruption, the head of an institution or a state politician shall, within three days from the performance of the appropriate actions, notify the person about whom information has been provided or requested, of the decision to request information or of the information supplied by the law enforcement or control institutions, and under Item 6.1 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the verified person has the right, within 3 days from the day of adoption of the decision to request information, to receive a written notice about the adopted decision to request information (under Item 1 of this procedure); meanwhile, P. Uleckas was not informed under the procedure established in these legal acts that the SIS is requested to provide information about him by Letter No. 39-9033 of 10 December 2003 “Regarding P. Uleckas” of the Chancellor of the Government A. Z. Kaminskas;

it has been mentioned that under Paragraph 7 of Article 9 of the Law on Prevention of Corruption, the person about whom information has been provided shall be acquainted with the information with the exception of its part which contains classified information; under Item 6.2 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the verified person has the right, within 3 days from the day of provision of the information about him to the recipient of information, to receive a written notice about the fact that information was provided by law enforcement and control institutions under Annex 2 of this procedure; under Item 6.3 of the said procedure, the verified person has the right, upon signing, to familiarise oneself with the provided information about him, with the exception of the part thereof which is classified; meanwhile, P. Uleckas was not presented the information about him which was provided by the SIS while investigating the complaint of “14 employees of the Marijampolė Municipality” (it should be noted that this information provided by the SIS to the Chancellor of the Government (or the Office of the Government) was not marked as classified);

it has been mentioned that under Item 13 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002, the SIS not later than within 30 calendar days from the day of receipt of the request, shall gather and provide in writing with the information held by itself, the Police Department, the Register of State Servants, and, if need may be, by other law enforcement and control institutions; Item 7 of the said procedure establishes what legally gathered objective information the providers of information may provide, namely the legally gathered information about: the previous record of the verified person (Item 7.1) the criminal persecution for an intentional crime against the verified person (Item 7.2); punishment of the verified person for the commission of violations of administrative law (Item 7.3); the fact that the operational investigation is carried out against the verified person (Item 7.4); recognition of the verified person, under the procedure established by law, as incapable or of limited capability (Item 7.5); the verified person’s abuse of narcotic, psychotropic, toxic substances or alcohol (Item 7.6); the fact that when entering the state service, the verified person presented counterfeit documents, concealed or provided the data which contradict the reality because of which he could not be admitted to the office of a state servant (Item 7.7); application of preventive measures to the verified person according to the Republic of Lithuania’s Law on the Restraint of Organised Crime (Item 7.8); the cases when the verified person had violated the requirements of the Republic of Lithuania’s Law on the Adjustment of Public and Private Interests in the State Service (Item 7.9); and the official (disciplinary) penalties—severe reprimand or dismissal from office—imposed on the verified person (Item 7.10); meanwhile, Letter No. 2.5-01-3994 “On Investigating an Anonymous Complaint” of the SIS Director V. Junokas of 29-30 December 2003, Letter No. 4-1-406 of 29 January 2004 and Letter No. 4-1-697 of 20 February 2004 do not include information specified in Item 7 of the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002.

11. All the enumerated circumstances testify that even though when P. Uleckas won the competition for the position of the government representative for the Marijampolė County, the Government, while deciding on appointing the said person to the said position, under the Constitution and laws had the powers to verify his credibility (inter alia, by asking for information from the SIS) and when it decided that P. Uleckas had lost his credibility, it could apply Paragraph 9 of Article 9 of the Law on Prevention of Corruption, under which, a person, who lost his credibility may be not admitted to state service; the credibility of P. Uleckas was verified without following the procedure of verification of the person who seeks to hold a position or holds a position in the state or municipal institution which is established in Article 9 (inter alia, Paragraphs 6, 7 and 8 thereof) of the Law on Prevention of Corruption as well as one did not follow the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution as approved by the Government Resolution (No. 1484) “On Approving the Procedure for Provision of Information About the Person Who Seeks to Hold the Position or Holds the Position in a State or Municipal Institution” of 19 September 2002 itself.

It needs also to be noted that the government resolution was submitted for consideration under the procedure of urgency. P. Uleckas actually did not have a possibility of using the right to impugn the provided information under judicial procedure which is enshrined in Paragraph 8 of Article 9 of the Law on Prevention of Corruption.

12. While assessing the entirety of the circumstances set forth in Items 10 and 11 of Part VI of this ruling of the Constitutional Court, it needs to be held that while verifying the credibility of P. Uleckas, one disregarded the procedure of verification of the credibility of a person, who seeks to hold a position in a state or municipal institution and the requirements of the due process of law.

13. It has been mentioned that the fact that the Government does not follow the laws means that Paragraph 2 of Article 5 of the Constitution, in which it is prescribed that the scope of power shall be limited by the Constitution, and Item 2 of Article 94 of the Constitution, under which the Government shall execute, inter alia, laws, as well as the constitutional principle of a state under the rule of law which implies the hierarchy of legal acts, are violated. It has also been mentioned that such a government resolution may also be in conflict with other provisions—norms and principles—of the Constitution.

It has also been mentioned that failure to pay heed by the Government to the resolutions it itself adopted would mean that while adopting a corresponding government resolution, the constitutional principle of a state under the rule of law and Paragraph 2 of Article 5 of the Constitution were violated.

14. Taking account of the arguments set forth, the conclusion should be made that government resolution No. 222 of 27 February 2004, according to the procedure of its adoption, is in conflict with Paragraph 2 of Article 5 of the Constitution, Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law and with Article 9 of the Law on Prevention of Corruption.

15. The fact that it has been held in this ruling of the Constitutional Court that while verifying the credibility of P. Uleckas, one disregarded the procedure of verification of the credibility of a person, who seeks to hold a position in the state or municipal establishment and the requirements of the due process of law, as well as that the impugned government resolution No. 222 of 27 February 2004, is in conflict with Paragraph 2 of Article 5 of the Constitution, Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law and with Article 9 of the Law on Prevention of Corruption, may not be interpreted as denial of the truth, credibility and sufficiency of the information provided by the SIS regarding the activity of P. Uleckas while heading the administration of the Marijampolė Municipality in order to state that P. Uleckas lost his credibility.

16. It has been mentioned that the Vilnius Regional Administrative Court, while considering the administrative case subsequent to the complaint of P. Uleckas, did not verify the information received from the SIS regarding the activity of P. Uleckas while he was heading the administration of the Marijampolė Municipality, upon receiving which the Government decided not to appoint him to the position of the government representative for the Marijampolė County, as well as did not establish and did not investigate any factual circumstances which would allow the assessment of the truth and credibility of the said information, the lawfulness of the procedure of its collection, etc., that this court neither expressis verbis denied, nor expressis verbis approved the said information and it did not formulate any direct position regarding this information.

It has also been mentioned that it is a matter of the competence of the court which considers an administrative case to assess whether the information received from the SIS by the Government regarding the activity of P. Uleckas while heading the administration of the Marijampolė Municipality which was regarded as permitting stating that P. Uleckas lost his credibility and which was the official legal ground for deciding not to appoint P. Uleckas to the position of the government representative for the Marijampolė County, is truthful and credible and if it is sufficient in order to reasonably state that P. Uleckas lost his credibility.

Thus, the Constitutional Court will not investigate the compliance of the impugned government resolution with the Constitution in the specified aspect.

This may not be interpreted as confirmation of the truth, credibility and sufficiency of the information provided by the SIS regarding the activity of P. Uleckas while heading the administration of the Marijampolė Municipality in order to state that P. Uleckas lost his credibility.

17. Having held all that, the Constitutional Court will not further investigate whether government resolution No. 222 of 27 February 2004 is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 33 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law which, according to the petitioner, is enshrined in the Preamble to the Constitution, with Paragraphs 1 and 3 of Article 3 (wording of 10 December 2002) of the Law on Administrative Supervision of Municipalities, with Item 6 (wording of 23 April 2003) of Paragraph 3 (wording of 3 April 2003) of Article 9 (wording of 4 July 2003), Item 3 of Paragraph 2 (wording of 11 November 2003) of Article 10 (wording of 18 December 2003) and Paragraph 2 of Article 13 (wording of 23 April 2002) of the Law on State Service.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the Resolution of the Government of the Republic of Lithuania (No. 222) “On the Candidate to the Government Representatives” (Official Gazette Valstybės žinios, 2004, No. 34-1096) of 27 February 2004 is in conflict, according to the procedure of its adoption, with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law, and with Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption.

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