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On investigation into activities of the President of the Republic and those of the Government in administrative courts and on the dismissal of a member of the State Gaming Control Commission

Case No. 04/08-11/08

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 18 DECEMBER 2007) OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA NO. 1K-988 “ON THE DISMISSAL OF A MEMBER OF THE STATE GAMING CONTROL COMMISSION” OF 29 MAY 2007 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 4 OF ARTICLE 26 (WORDING OF 4 JULY 2003) OF THE REPUBLIC OF LITHUANIA LAW ON GAMING

 

13 May 2010

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, a party concerned, who was Julius Sabatauskas, a Member of the Seimas (representing the Seimas of the Republic of Lithuania, a party concerned, in the part of the case subsequent to petition No. 1B-04/2008 of the Vilnius Regional Administrative Court, a petitioner, and subsequent to petition No. 1B-13/2008 of the Supreme Administrative Court of Lithuania, a petitioner),

the representative of the President of the Republic of Lithuania, a party concerned, who was Rasa Svetikaitė, an Advisor to the President of the Republic (representing the President of the Republic of Lithuania, a party concerned, in the part of the case subsequent to petition No. 1B-04/2008 of the Vilnius Regional Administrative Court, a petitioner),

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 23 April 2010, heard case No. 04/08-11/08 subsequent to:

1) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 2 (wording of 18 December 2007) of Article 16 of the Republic of Lithuania Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the President of the Republic is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution of the Republic of Lithuania as well as whether Decree of the President of the Republic of Lithuania No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 is not in conflict with Item 10 of Article 84 of the Constitution of the Republic of Lithuania and Paragraph 4 of Article 26 of the Republic of Lithuania Law on Gaming (petition No. 1B-04/2008);

2) the petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting to investigate whether Paragraph 2 (wording of 18 December 2007) of Article 16 of the Republic of Lithuania Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the Government of the Republic of Lithuania (as a collegial body) is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania (petition No. 1B-13/2008).

By the Constitutional Court Decision “On Joining Petitions into One Case” of 6 April 2010, petition No. 1B-04/2008 (case No. 04/08) of the Vilnius Regional Administrative Court, a petitioner, and petition No. 1B-13/2008 (case No. 11/08) of the Supreme Administrative Court of Lithuania, a petitioner, were joined into one case and it was given reference No. 04/08-11/08.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, a petitioner, was investigating an administrative case. By its ruling the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether:

Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the President of the Republic is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution;

Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 (hereinafter also referred to as Decree of the President of the Republic No. 1K-988 of 29 May 2007) is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 of the Law on Gaming.

2. The Supreme Administrative Court of Lithuania, a petitioner, was investigating an administrative case. By its ruling the Supreme Administrative Court of Lithuania suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the Government (as a collegial body) is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 30 of the Constitution.

II

1. The petition of the Vilnius Regional Administrative Court, a petitioner, is substantiated by the following arguments.

The petitioner points out that the dispute arose regarding service-related relations (the dismissal of an official from office) as well as the reimbursement of property and non-property damage. In the opinion of the petitioner, under Items 3 and 5 of Paragraph 1 of Article 15 of the Law on the Proceedings of Administrative Cases, the administrative court should have the right to consider such a case, however, the legal regulation entrenched in Paragraph 2 of Article 16 of the same law, under which investigation of the cases concerning the activities of the President of the Republic, also the activities when passing a legal act (decree) of one-time application, is outside the jurisdiction of the administrative court, implies such a situation where the citizens, while seeking to defend their rights and legitimate interests, may not apply to the administrative court regarding the individual legal acts (decrees) of one-time application adopted with regard to them by the President of the Republic, whereby certain rights and duties are created for them. By making reference to the provisions of the official constitutional doctrine that disclose the concept of constitutional justice and elucidate the principle of constitutional equality of rights of persons, the petitioner maintains that the provision of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases that investigation of the activities of the President of the Republic is outside the jurisdiction of administrative courts is in conflict with the principle of equality of persons entrenched in Paragraph 1 of Article 29 of the Constitution as well as with Article 109 (inter alia Paragraph 1 thereof) of the Constitution.

The petitioner had doubts whether Decree of the President of the Republic No. 1K-988 of 29 May 2007, whereby Petras Navikas, upon taking account of the decision of the Chief Official Ethics Commission of 13 April 2006 and the ruling of the Supreme Administrative Court of Lithuania of 24 June 2007, was dismissed from the office of a member of the State Gaming Control Commission, is not in conflict with Item 10 of Article 84 of the Constitution, wherein it is established that the President of the Republic shall dismiss, according to the established procedure, state officials provided for by laws, and with the provisions of Paragraph 4 of Article 26 of the Law on Gaming, which provide for the grounds of dismissal of a member of the State Gaming Control Commission prior to the expiry of the term of office. The petitioner notes that among the grounds for dismissal of a member of the State Gaming Control Commission prior to the expiry of the term of office, which are entrenched in Paragraph 4 of Article 26 of the Law on Gaming, there is no such one on the basis of which the President of the Republic, upon taking account of the decision of the Chief Official Ethics Commission and the court ruling whereby such a decision was left to be in force, could dismiss a member of the State Gaming Control Commission, an official appointed by him.

The petitioner notes that, in its response, the Office of the President of the Republic, the respondent, does not indicate any concrete norms of law which were applied in the course of the adoption of the decree of the President of the Republic.

2. The petition of the Supreme Administrative Court of Lithuania, a petitioner, is substantiated by the following arguments.

The provision of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases that investigation of the activities of the Government (as a collegial body) is outside the jurisdiction of administrative courts is designed to limit the competence of administrative courts.

In the opinion of the petitioner, the provision of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases that administrative courts shall not investigate the activities of the Government (as a collegial body) may be construed as prohibiting administrative courts to investigate not only the lawfulness of legal acts adopted by this institution, but also its other actions or failure to act (“activities”) while performing the functions assigned to it in the Constitution and the laws.

According to the petitioner, such construction of the legal regulation established in Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases may imply a situation where persons will not have the possibility to defend their rights and legitimate interests which will be violated by the actions of the Government (as a collegial body) or by its failure to act. Disputes arising from the activities of the Government in the course of implementation of laws, particularly, when adopting individual decisions or not adopting them, are, in essence, of administrative character and, therefore, according to their legal nature, might be investigated in administrative courts.

III

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, a party concerned, who was J. Sabatauskas, a Member of the Seimas, wherein it is maintained that the disputed Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the Government (as a collegial body) is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 30 of the Constitution. The position of the representative of the Seimas, a party concerned, is substantiated by the following arguments.

1.1. One may not construe Paragraph 1 of Article 30 of the Constitution by separating it from Articles 5, 6, 29, 31, 102, 105, 106, 107, 109, 110, and 111 of the Constitution, which entrench the system of institutions executing state power, the concept of administration of justice, equality of rights of persons, the right to a fair and impartial court, the independence of judges and courts while administering justice, and the duty of the judge to suspend the consideration of a case when he applies to the Constitutional Court. The said articles of the Constitution are related both among themselves and with other norms and principles of the Constitution. All constitutional provisions are also to be construed in the context of the constitutional principle of a state under the rule of law, which is a universal principle and which grounds the whole system of Lithuanian law as well as the Constitution itself.

1.2. Under Article 109 of the Constitution as well as the principle of a state under the rule of law and that of justice, a duty arises for the court to make use of all possibilities so that the objective truth would be established in the case and a just decision would be adopted. It is not possible to adopt a just decision having not investigated the case, and in order to do this, it is necessary to collect all the evidence in the case, to investigate all the factual circumstances and to assess them. Irrespective of their place in the instance system of courts, which is entrenched in Paragraphs 1 and 2 of Article 111 of the Constitution, courts, while executing their constitutional obligation—justice, have a duty to collect and record evidence in the cases under investigation. This duty pertains to courts (judges) not only in the cases when the court (judge) has no doubts as regards the compliance of the legal acts (or parts thereof) adopted by the entities of state power (legislative and executive) which are applicable in a concrete case with the Constitution, but also in the cases when the court (judge) has such doubts and it initiates a constitutional justice case at the Constitutional Court. The evidence collected in the case under investigation by the court (judge) enables the court (judge) to adopt a just decision and, when initiating a constitutional justice case at the Constitutional Court, to substantiate the doubts and set forth the position regarding the compliance of a legal act (or part thereof) adopted by an entity of state power (legislative and executive), which is applicable in the case and the verification of the constitutionality of which is entrusted to the Constitutional Court, with the Constitution or the laws.

In the constitutional justice case at issue, the provision “Investigation of the activities of <...> the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases may not be construed as an exception to the general rule that places the court (judge) under the obligation to collect evidence in the case, to establish the legal act adopted by an entity of state power (legislative and executive) which is applicable in that case, and, if doubts arise regarding its compliance with the Constitution or the laws, on the grounds provided for in Paragraph 2 of Article 110 of the Constitution, to initiate a case at the Constitutional Court.

1.3. Collecting of evidence in the constitutional justice case initiated by a court may not be treated at the Constitutional Court as interference with the exceptional competence of the Constitutional Court to consider the acts indicated in Paragraphs 1 and 2 of Article 105 of the Constitution and to adopt a decision, which is final not subject to appeal. The provision “Investigation of the activities of <...> the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases may not be construed as establishing the duty (exclusively) for the Constitutional Court alone to collect evidence in the constitutional justice case under its consideration wherein the petitioner is a court. The aforesaid provision, according to the representative of the Seimas, a party concerned, does not prohibit administrative courts also to collect evidence in those cases when a court has initiated a constitutional justice case at the Constitutional Court.

1.4. norms and principles entrenched in the Constitution imply the model of the court as an institution administering justice, where the court cannot be understood as a passive observer of the process of cases. The court, seeking to investigate all circumstances of the case objectively and comprehensively and to adopt a just decision, as well as when initiating constitutional justice cases at the Constitutional Court, must be active and it has powers to perform procedural actions (to collect evidence) by itself.

2. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the President of the Republic, a party concerned, who was R. Svetikaitė, an Advisor to the President of the Republic, wherein it is maintained that Decree of the President of the Republic No. 1K-988 of 29 May 2007 is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming. The position of the representative of the President of the Republic, a party concerned, is substantiated by the following arguments.

2.1. The list of the grounds for dismissal from office of a member of the State Gaming Control Commission, which is provided for in Paragraph 4 of Article 26 of the Law on Gaming, is not final. Such a conclusion is to be drawn on the basis of the provision of Paragraph 7 of Article 26 of the Law on Gaming whereby members of the State Gaming Control Commission are held liable in accordance with the procedure established in the Labour Code and other legal acts. This provision inter alia means that the grounds for dismissal of members of the State Gaming Control Commission prior to the expiry of the term of office may be established in other laws as well. One of such legal acts is the Republic of Lithuania Law on the Adjustment of Public and Private Interests in the State Service upon stating the violation of provisions whereof the Chief Official Ethics Commission, under Item 4 of Paragraph 6 of Article 23 of this law, may apply to the President of the Republic regarding the dismissal of the officials appointed by him or propose that the investigation would be initiated, if reasoned information is obtained that the officials appointed by the President of the Republic do not comply with the requirements of this law.

2.2. The Law on the Adjustment of Public and Private Interests in the State Service is applied not only to the state servants who fall within the area of regulation of the Law on the State Service, but also to members of the State Gaming Control Commission.

While taking account of provisions of the Law on the Adjustment of Public and Private Interests in the State Service, the representative of the President of the Republic draws a conclusion that the decision of the Chief Official Ethics Commission, whereby the violation of the Law on the Adjustment of Public and Private Interests in the State Service is stated, is an independent ground provided for by the law to dismiss officials appointed by the President of the Republic, consequently, members of the State Gaming Control Commission appointed by the President of the Republic as well.

IV

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Tomas Vaitkevičius, Vice-minister of Justice of the Republic of Lithuania, and Rūta Mackevičienė, Deputy Director General of the European Law Department under the Ministry of Justice of the Republic of Lithuania.

2. In the course of the preparation of the case for the Constitutional Court hearing, by a letter of Česlovas Kazimieras Blažys, the then Chairman of the State Gaming Control Commission, the material related with the dismissal of P. Navikas from the office of a member of the State Gaming Control Commission was received.

V

1. At the Constitutional Court hearing, J. Sabatauskas, the representative of the Seimas, a party concerned, virtually reiterated the arguments set forth in his written explanations, answered to the questions of the justices and provided explanations regarding Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the President of the Republic is outside the jurisdiction of administrative courts.

2. At the Constitutional Court hearing, R. Svetikaitė, the representative of the President of the Republic, a party concerned, virtually reiterated the arguments set forth in her written explanations and answered to the questions of the justices.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, a petitioner, requests to construe whether:

Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 of the Law on Gaming;

Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the President of the Republic is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 29 and Article 109 of the Constitution.

The petitioner does not indicate with what wording of Paragraph 4 of Article 26 of the Law on Gaming the investigation of the compliance of the disputed decree of the President of the Republic is requested, however, it is clear from the arguments of the petition that the petitioner requests to investigate whether Decree of the President of the Republic No. 1K-988 is not in conflict with Paragraph 4 of Article 26 of the Law on Gaming which is set forth in the wording of 4 July 2003.

Although the petitioner requests to investigate the compliance of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases (to the corresponding extent) with inter alia entire Article 109 of the Constitution, however, it is clear from the arguments of the petition that the petitioner requests to investigate whether Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases (to the corresponding extent) is not in conflict with inter alia Paragraph 1 of Article 109 of the Constitution.

2. The Supreme Administrative Court of Lithuania, a petitioner, requests to investigate whether Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, to the extent that it is established that investigation of the activities of the Government (as a collegial body) is outside the jurisdiction of administrative courts, is not in conflict with Paragraph 1 of Article 30 of the Constitution.

3. Taking account of the arguments presented in the aforementioned petitions, in the constitutional justice case at issue, the Constitutional Court will investigate whether:

the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 30, and Paragraph 1 of Article 109 of the Constitution;

Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming.

II

1. On 14 January 1999, the Seimas adopted the Republic of Lithuania Law on the Proceedings of Administrative Cases, which came into force on 1 May 1999.

Article 5 “Cases not Decided by Administrative Courts” (wording of 14 January 1999) of this law inter alia prescribed:

1. Administrative courts shall not hear cases assigned to the competence of the Constitutional Court, also cases within the competence of courts of general jurisdiction or other specialised courts.

2. Investigation of the activities of the President of the Republic, the Seimas, Members of the Seimas, the Prime Minister, the Government (as a collegial body), the Seimas Controllers, Justices of the Constitutional Court, the Supreme Court of Lithuania, and the Court of Appeal of Lithuania, the procedural actions of judges of other courts, also of prosecutors, investigators, interrogators, connected with the administration of justice or investigation of a case shall be outside the jurisdiction of administrative courts.

<...>.”

2. On 19 September 2000, the Seimas adopted the Republic of Lithuania Law on Amending the Law on the Proceedings of Administrative Cases by Article 1 whereof it amended the Law on the Proceedings of Administrative Cases (wording of 14 January 1999 with subsequent amendments and supplements) and set it forth in a new wording. The Law on the Proceedings of Administrative Cases of the new wording came into force on 1 January 2001.

Article 16 “Cases not within the Jurisdiction of Administrative Courts” (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases inter alia prescribes:

1. Administrative courts shall not hear cases assigned to the competence of the Constitutional Court, also cases within the competence of courts of general jurisdiction or other specialised courts.

2. Investigation of the activities of the President of the Republic, the Seimas, Members of the Seimas, the Prime Minister, the Government (as a collegial body), Justices of the Constitutional Court, the Supreme Court of Lithuania, and the Court of Appeal of Lithuania, the procedural actions of judges of other courts, also of prosecutors, investigators, interrogators, and court bailiffs, connected with the administration of justice or investigation of a case and also with the execution of decisions shall be outside the jurisdiction of administrative courts.

<...>.”

3. On 3 April 2003, the Seimas adopted the Republic of Lithuania Law on Amending Articles 16 and 109 of the Law on the Proceedings of Administrative Cases, which came into force on 1 May 2003, by Article 1 whereof it amended Paragraph 2 (wording of 19 September 2000) of Article 16 of the Law on the Proceedings of Administrative Cases and set it forth in the following way:

Investigation of the activities of the President of the Republic, the Seimas, Members of the Seimas, the Prime Minister, the Government (as a collegial body), Justices of the Constitutional Court, the Supreme Court of Lithuania, and the Court of Appeal of Lithuania, the procedural actions of judges of other courts, also of prosecutors, officials of pre-trial investigation and bailiffs, connected with the administration of justice or investigation of a case and also with the execution of decisions shall be outside the jurisdiction of administrative courts.”

4. On 18 December 2007, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 16 and 110 of the Law on the Proceedings of Administrative Cases, which came into force on 29 December 2007, by Article 1 whereof it supplemented Paragraph 2 (wording of 3 April 2003) of Article 16 of the Law on the Proceedings of Administrative Cases.

Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, the provision whereof is being disputed in the constitutional justice case at issue, prescribes:

Investigation of the activities of the President of the Republic, the Seimas, Members of the Seimas, the Prime Minister, the Government (as a collegial body), Justices of the Constitutional Court, the Supreme Court of Lithuania, and the Court of Appeal of Lithuania, the procedural actions of judges of other courts, also of prosecutors, officials of pre-trial investigation and bailiffs, connected with the administration of justice or investigation of a case, also with the execution of decisions and decisions (recommendations) of the Seimas Controller shall be outside the jurisdiction of administrative courts.”

5. Summing up the discussed legal regulation entrenched in the Law on the Proceedings of Administrative Cases, in the context of the constitutional justice case at issue it needs to be held that the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 of Article 16 of the Law on the Proceedings of Administrative Cases, which is being disputed by the petitioners, since the entry into force of the Law on the Proceedings of Administrative Cases on 1999 May 1 has remained unchanged.

III

On the compliance of the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases with Paragraph 1 of Article 29, Paragraph 1 of Article 30, and Paragraph 1 of Article 109 of the Constitution.

1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court is requested to investigate inter alia the compliance of the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases with Paragraph 1 of Article 29, Paragraph 1 of Article 30, and Paragraph 1 of Article 109 of the Constitution.

2. While deciding whether the disputed provision of the aforementioned law is not in conflict with the provisions of the Constitution, first of all, it is necessary to reveal peculiarities of the constitutional status of the President of the Republic and the Government.

3. The Constitutional Court has held that the state exercises its functions through the system of respective establishments, which comprise, first of all, state institutions; the system of state institutions comprises various institutions; the variety of these institutions, their legal status and powers are determined by a variety of functions exercised by the state; some state institutions are treated in the Constitution as state institutions which execute state power. Such institutions are specified in Paragraph 1 of Article 5 of the Constitution (Constitutional Court ruling of 13 December 2004).

4. Paragraph 1 of Article 5 of the Constitution provides that, in Lithuania, state power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary.

This provision of the Constitution provides grounds for the separation and balance of the powers of the state (Constitutional Court ruling of 20 April 1999).

4.1. The Seimas is an institution of state power executing the legislative power (Constitutional Court ruling of 13 May 2004).

The constitutional nature of the Seimas, as representation of the Nation, determines its special place in the system of institutions of state power, its functions and powers necessary in order to discharge these functions (Constitutional Court rulings of 13 May 2004, 1 July 2004, 4 April 2006 and decision of 15 January 2009).

The list of the constitutional powers of the Seimas consolidated in Article 67 of the Constitution is not a final one; the Seimas, as the representation of the Nation, has the right to establish, by laws, also such its powers that are not expressis verbis indicated in the Constitution which, however, are designed for the implementation of the constitutional functions of the Seimas (Constitutional Court ruling of 13 May 2004).

From the provisions of the Constitution which establish the powers of the Seimas, it is clear that, while implementing its constitutional powers, the Seimas discharges the classical functions of the parliament of a democratic state under the rule of law: the Seimas passes laws (the legislative function), conducts the parliamentary control of executive and other state institutions (save courts) (the control function), establishes state institutions, appoints and dismisses their heads and other state officials (the establishment function), confirms the State Budget and supervises the execution thereof (the budgetary function), etc. (Constitutional Court rulings of 13 May 2004, 1 July 2004, and 4 April 2006 and decision of 15 January 2009). The said functions of the Seimas as the representation of the Nation of a democratic state under the rule of law are constitutional values. Under the Constitution, the legislator and other entities of lawmaking may not establish any such legal regulation whereby the said constitutional functions of the Seimas would be denied or opportunities to discharge them would be restricted, since thus the Seimas, the representation of the Nation, would be hindered from effective actions in the interests of the Nation and the State of Lithuania (Constitutional Court rulings of 13 May 2004 and 4 April 2006).

4.2. The constitutional arrangement of the State of Lithuania has a specific feature of the model of dualistic (double) executive power: the executive power in Lithuania is exercised by the President of the Republic, the Head of State, and the Government (Constitutional Court ruling of 13 December 2004).

4.2.1. The President of the Republic is a part of the executive power (Constitutional Court rulings of 10 January 1998, 30 December 2003, and 13 December 2004).

Only one person, i.e. the President of the Republic, who is elected by the citizens of the Republic of Lithuania, acquires the status of the Head of State for the term established by the Constitution. The legal status of the President of the Republic, as the Head of State, is individual, it differs from the legal status of all other citizens (Constitutional Court rulings of 8 May 2000, 19 June 2002, and 30 December 2003, conclusion of 31 March 2004, and ruling of 25 May 2004); the legal status of the President of the Republic, as the Head of State, also differs from the legal status of all other state officials (Constitutional Court rulings of 19 June 2002, 30 May 2003, and 30 December 2003, conclusion of 31 March 2004, and ruling of 25 May 2004).

The individual exceptional legal status of the President of the Republic, as the Head of State, is disclosed by various provisions of the Constitution (Constitutional Court rulings of 19 June 2002, 30 May 2003, 30 December 2003, and 25 May 2004). It needs to be mentioned that a part of the constitutional powers of the President of the Republic, the Head of State, is linked with an opportunity to form other institutions executing state power and/or to exert influence on their activity, the decisions being adopted, and on the lawmaking process (Constitutional Court ruling of 25 May 2004). For example, enjoying the constitutional powers to sign and officially promulgate laws, the President of the Republic takes part in the legislative process (Constitutional Court rulings of 19 January 1994, 19 June 2002, and 22 February 2008); along with the Seimas, the President of the Republic forms the Government; in this process, the main task of the activities of the President of the Republic is to guarantee the interaction among the institutions of power, and act so that an efficient Government, i.e. having the confidence of the Seimas, would be formed (Constitutional Court ruling of 10 January 1998); the powers of the President of the Republic in the sphere of formation of the judiciary entrenched in the Constitution are an important element of the constitutional status of the Head of State; any change or restriction of the powers of the President of the Republic in this area, as well as any establishment of such a procedure for the implementation of these powers when the actions of the President of the Republic would be bound by decisions of the institutions or officials that are not provided for in the Constitution, would mean a change of the constitutional competence of the President of the Republic (Constitutional Court rulings of 21 December 1999 and 9 May 2006 as well as decision of 15 May 2009).

Thus, the President of the Republic also has such constitutional powers, when exercising which he may strongly influence other institutions executing state power, i.e. the Seimas, which exercises the legislative power, and the Government, an institution of the executive power; the President of the Republic, the Head of State, has also significant constitutional powers in forming the judicial power. The functioning of other institutions of state power considerably depends upon the execution of the powers by the President of the Republic, the Head of State, which are established for him in the Constitution (Constitutional Court ruling of 25 May 2004).

Additional powers of the President of the Republic may be established by laws; however, the nature of such new functions must not cause dissonance nor oppose the constitutional powers of the President of the Republic, nor contradict the constitutional status of the Head of State of Lithuania (Constitutional Court ruling of 4 March 1999).

From the Constitution arises a duty of the President of the Republic, as the Head of State, to act, while exercising the powers established for him in the Constitution and laws, so that his actions would maintain harmonic interaction among the institutions executing state power, that the citizens of the Republic of Lithuania, the state community, could trust in the institution of the President of the Republic, the Head of State, that the State of Lithuania would be properly represented in its relations with other countries and international organisations, that the State of Lithuania would be able to duly perform its international obligations, and that it might be ensured that other entities of international relations (foreign states, international organisations, etc.) could duly perform their obligations to the State of Lithuania. The due fulfilment of the said constitutional duty of the President of the Republic, the Head of State, is an essential condition of the trust of the citizens in the State of Lithuania itself, as the general good of the entire society, and its institutions as well as a condition of the trust of other entities of international relations in the State of Lithuania as well (Constitutional Court ruling of 25 May 2004).

The President of the Republic, when implementing all the powers that he is charged with, may not act by following the objectives or interests which are not in line with the Constitution and laws and the public interests (Constitutional Court ruling of 30 December 2003, conclusion of 31 March 2004 and ruling of 25 May 2004).

4.2.2. In the Lithuanian system of institutions of the executive power, the Government implementing state administration is exceptionally important; the Government is a joint institution of general competence (Constitutional Court ruling of 10 January 1998). It is composed of the Prime Minister and Ministers (Article 91 of the Constitution).

Only the main powers of the Government are entrenched in the Constitution, and it is established therein that the Government shall discharge the duties prescribed to it not only in the Constitution but other laws as well (Item 7 of Article 94 of the Constitution). Such constitutional regulation of the powers of the Government is determined by the fact that the areas of state governance and functions of governance are very much varied and subject to change. The activity of the Government is not only of executive but also procedural nature. Enforcing the laws and resolutions adopted by the Seimas, the Government itself passes normative and individual legal acts and ensures their enforcement (Constitutional Court ruling of 23 November 1999).

Everything that the Government performs, while implementing the powers established for it in the Constitution and laws, is resolving of the affairs of state administration (Constitutional Court rulings of 29 November 2001, 30 May 2003, and 26 February 2010).

Under Paragraph 1 of Article 95 of the Constitution, the Government shall resolve the affairs of state governance at its sittings by adopting resolutions by majority vote of all the members of the Government. The affairs of state governance, which are attributed to the powers of the Government by the Constitution and laws, may not be decided by the Government adopting an act of a different type (Constitutional Court rulings of 29 November 2001, 30 May 2003, 3 December 2003, and 13 August 2007).

The provisions of the official constitutional doctrine that the Government, while resolving the affairs of state governance, must always adopt resolutions and that the legal acts adopted by the Government have to be officially published, irrespective of the fact whether these legal acts are normative or individual, as well as irrespective of the fact for what subject or circle of subjects they are designed, are not applicable to the Government resolutions and the decisions which are adopted pursuant to Paragraph 4 of the Constitutional Act “On the Membership of the Republic of Lithuania in the European Union” (Constitutional Court ruling of 27 June 2007).

In the context of the constitutional justice case at issue it needs to be noted that the resolving of the affairs of state governance by adopting corresponding acts or not adopting them at the Government sittings is a special one: while deciding on such affairs, the Government acts as one of the institutions executing state power that are entrenched in Paragraph 1 of Article 5 of the Constitution.

4.3. Courts are one kind of the institutions of state power entrenched in the Constitution (Constitutional Court ruling of 6 June 2006). The judicial power implemented by courts—jurisdictional institutions—together with the legislative and executive branches of power, is a full-fledged branch of state power, one of the branches of state power entrenched in the Constitution (Constitutional Court rulings of 28 March 2006 and 27 November 2006).

Under the Constitution and laws, at present in Lithuania there are three systems of courts: 1) the Constitutional Court executes constitutional judicial control; 2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and local courts, specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction; 3) under Paragraph 2 of Article 111 of the Constitution, one system of specialised courts, namely, administrative ones, which is composed of the Supreme Administrative Court of Lithuania and regional administrative courts, is established and is functioning at present (Constitutional Court rulings of inter alia 13 December 2004, 16 January 2006, 28 March 2006, 9 May 2006, 6 June 2006, 27 November 2006, and 22 October 2007).

In this context it needs to be noted that the Constitutional Court is a part of the judiciary system (Constitutional Court ruling of 6 June 2006).

Under Paragraph 1 of Article 102 of the Constitution, the Constitutional Court has the exclusive competence to investigate and decide on whether any act of the Seimas, the President of the Republic or the Government, as well as any act (part thereof) adopted by referendum is not in conflict with any act of higher power, inter alia (and, first of all) with the Constitution (Constitutional Court rulings of 28 March 2006 and 6 June 2006, decision of 8 August 2006, and ruling of 24 October 2007). It needs to be noted that the Constitutional Court investigates whether precisely legal acts, but not non-adoption of law-making decisions by state institutions (the Seimas, the President of the Republic, the Government), i.e. avoidance or delay to adopt such decisions, as well as failure to act, which is determined by other motives, are not in conflict with legal acts of higher power, inter alia (and, first of all) with the Constitution (Constitutional Court decision of 8 August 2006).

5. The policy implemented by the Seimas, the President of the Republic and the Government constitutes overall activities of these institutions of power within the competence defined to them in the Constitution and laws. Competent decisions and actions of these institutions of power are an integral part of the policy implemented by them (Constitutional Court ruling of 10 March 1998).

6. In its rulings the Constitutional Court has held more than once that Article 5 of the Constitution (as well as other articles of the Constitution which establish powers of the state institutions executing state power) entrenches the principle of separation of powers.

In its acts the Constitutional Court has held more than once that the constitutional principle of separation of powers means that the legislative, executive, and judicial powers are separated, and sufficiently independent; but that there must be a balance among them; that every institution of power has the competence corresponding to its purpose whose concrete content depends on the state power to which this institution belongs and on the place of the institution among other institutions of state power as well as the relation of its powers with those of other institutions; that after the powers to a concrete institution of state power have been directly established in the Constitution, no institution of state power may either take over or transfer or waive such powers; and that such powers may neither be changed nor limited by means of a law (Constitutional Court rulings of inter alia 14 January 2002, 5 March 2002, 23 April 2002, 11 July 2002, 24 December 2002, 13 May 2004, 13 December 2004, 6 June 2006, and 2 March 2009).

It needs to be emphasised that the interaction of state powers may not be treated as their opposition or competition, thus, also the checks and balances that the judicial power (institutions thereof) and other state powers (institutions thereof) have towards each other, may not be treated as mechanisms of the opposition of powers. The model of reciprocity among state powers entrenched in the Constitution is also described by the reciprocal control and balance of state powers (institutions thereof), which does not allow for one state power to dominate in respect of the other (others), and by their cooperation, of course, without overstepping the limits established by the Constitution—without interfering in the implementation of powers of other state power (Constitutional Court ruling of 9 May 2006).

7. In the context of the constitutional justice case at issue it needs to be noted that the peculiarities of the constitutional status of the Seimas, the President of the Republic, the Government, and the Judiciary related with the implementation of state power and separation of state powers inter alia imply that these institutions may not take over constitutional powers of each other, thus, also the courts to which persons concerned apply with petitions requesting to investigate the acts adopted by the Seimas, the President of the Republic, or the Government or otherwise expressed activities of these institutions may not take over the constitutional powers of the Seimas, the President of the Republic, or the Government, i.e. adopt corresponding decisions for these institutions of power or obligate the said institutions of power to pass acts related with execution of state power.

In this context it needs to be noted that the Constitution consolidates the powers of the Constitutional Court to investigate and decide whether acts of the Seimas and acts (parts thereof) of the President of the Republic, and the Government are not in conflict with acts of higher power, inter alia (and, first of all) with the Constitution. Every legal act (or part thereof) passed by the Seimas, the President of the Republic, or the Government, which is recognised as being in conflict with any legal act of higher power, inter alia (and, first of all) with the Constitution, is removed from the Lithuanian legal system for good, it may never be applied anymore (Constitutional Court rulings of 28 March 2006 and 6 June 2006 as well as decision of 4 July 2008). In this respect the legal power of such a legal act is abolished (Constitutional Court decisions of 8 August 2006 and 1 February 2008). Consequently, such an act is nullified.

It also needs to be noted that the Seimas, the President of the Republic, and the Government, while adopting new, amending and supplementing already adopted laws and other legal acts, are bound by the concept of the provisions of the Constitution and other legal arguments set forth in the reasoning part of the Constitutional Court ruling (Constitutional Court ruling of 30 May 2003).

8. It has been mentioned that in the constitutional justice case at issue the Constitutional Court is requested to investigate whether the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases is not in conflict with inter alia Paragraph 1 of Article 30 of the Constitution.

9. Article 30 of the Constitution prescribes: the person whose constitutional rights or freedoms are violated shall have the right to apply to court (Paragraph 1); compensation for material and moral damage inflicted upon a person shall be established by law (Paragraph 2).

9.1. Paragraph 1 of Article 30 of the Constitution consolidates the constitutional principle of judicial defence. This principle is universal; every person, who thinks that his rights or freedoms have been violated, has the right to judicial defence of his constitutional rights and freedoms that have been violated; the defence of his violated rights in court is guaranteed to the person regardless of his legal status; the violated rights of the person as well as his legitimate interests must be defended in court regardless of whether or not they are directly consolidated in the Constitution; the right to apply to court is an absolute one; this right may not be limited or denied; the constitutional right of the person to apply to court may not be artificially restricted, nor that the implementation of this right may be unreasonably burdened; if the constitutional right of the person to apply to court were not ensured, the generally recognised legal principle ubi ius, ibi remedium—if there is a certain right (freedom), there must be a measure for its protection—would be also disregarded; such a legal situation where a certain right or freedom of the person cannot be defended, also by means of the judicial procedure, although the person himself thinks that this right or freedom has been violated, is, under the Constitution, impossible, nor does the Constitution tolerate this (Constitutional Court rulings of inter alia 18 April 1996, 8 May 2000, 30 June 2000, 17 August 2004, and 13 December 2004, as well as decision of 8 August 2006).

It needs to be noted that the legal regulation entrenching the procedure of implementation of the right of a person to judicial defence of his rights and freedoms must conform to the constitutional requirement of legal clarity; the legislator must clearly establish in laws in what manner and to which court a person can apply, so that he would implement his right in reality to apply to court regarding violation of his rights and freedoms (Constitutional Court rulings of 29 December 2004, 27 November 2006, and 15 May 2007).

9.2. Paragraph 1 of Article 30 of the Constitution is to be construed together with Paragraph 2 of the same article, wherein it is established that compensation for material and moral damage inflicted upon a person shall be established by law. The Constitutional Court has held more than once that the necessity to compensate material and moral damage inflicted upon a person is a constitutional principle (Constitutional Court rulings of 20 January 1997, 13 December 2004, 19 August 2006, 27 March 2009, and 3 February 2010).

The Constitution imperatively requires to establish by law such legal regulation that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation (Constitutional Court rulings of 19 August 2006, 27 March 2009, and 3 February 2010). It does not follow from the Constitution that it is possible by laws to establish some exceptions, under which the material and/or moral damage inflicted upon the person is not compensated, for example, because of the reason that it was inflicted by unlawful actions of officials or institutions of the state itself. If the law, let alone other legal act, established such legal regulation whereby the state would fully or partially avoid the duty to justly compensate for material and/or moral damage inflicted by unlawful actions of institutions or officials of the state itself, it would mean not only that the constitutional concept of compensation for damage is disregarded and that this is not line with the Constitution (inter alia Paragraph 2 of Article 30 thereof), but it would also undermine the raison d’être of the state itself, as the common good of the whole society (Constitutional Court ruling of 19 August 2006).

10. It needs to be noted that the provisions of Article 30 of the Constitution are to be construed inseparably from other provisions of the Constitution, inter alia Paragraph 1 of Article 109, establishing that, in the Republic of Lithuania, justice shall be administered only by courts, and Paragraph 1 of Article 29, establishing that all persons shall be equal before the law, the court, and other state institutions and officials.

10.1. While construing the content of Paragraph 1 of Article 109 of the Constitution, the Constitutional Court has more than once inter alia held that administration of justice is the purpose and constitutional competence of the judicial power (Constitutional Court rulings of 28 March 2006 and 27 November 2006); while administering justice, the court must secure the implementation of law as expressed in the Constitution, laws and other legal acts, guarantee the superiority of law and protect human rights and freedoms (Constitutional Court rulings of inter alia 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006, 24 October 2007, 21 January 2008, 15 March 2008, 17 September 2008, and 10 April 2009, as well as decision of 22 April 2010); also, while administering justice, the court must follow only the laws and legal acts that are not in conflict with the Constitution, and it may not apply a law, which is in conflict with the Constitution (Constitutional Court rulings of 16 January 2006, 28 March 2006, 27 June 2007, 2 March 2009, and 22 June 2009).

10.2. While construing the content of Article 29 of the Constitution, the Constitutional Court has held in its rulings more than once that the principle of formal equality of all persons must be also followed in the course of both enactment of laws and their application, as well as in administration of justice; this principle obligates to legally assess homogeneous facts in the same manner and prohibits to arbitrarily assess essentially homogeneous facts in a varied manner; the said principle would be violated when a certain group of people to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in the character and extent between these groups that such an uneven treatment would be objectively justified (Constitutional Court rulings of inter alia 20 November 1996, 17 November 2003, 30 December 2003, and 13 December 2004).

11. In the context of the constitutional justice case at issue it needs to be noted that: “<...> the fact that the subjects specified in the Constitution may not dispute in the Constitutional Court such failure of a law-making subject to act, where, instead of the legal act (parts thereof) that was recognised by the Constitutional Court as being in conflict with a legal act of higher power, inter alia with the Constitution, it has not passed a legal act (acts) which establish a new (different) legal regulation harmonised with the said legal acts of higher power, inter alia with the Constitution, while the Constitutional Court does not have the powers to investigate non-adoption of such law-making decisions, does not mean that the aforementioned persons cannot defend their rights and freedoms (as well as in court) at all, which are violated because the said law-making decisions have not been adopted. The general legal principle ubi ius, ibi remedium, the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be a directly applicable act, the constitutional principle of responsible governance, the provision of Paragraph 3 of Article 5 of the Constitution that state institutions shall serve the people, the provision of Article 18 of the Constitution that human rights and freedoms shall be innate, as well as the right of the person who thinks that his rights or freedoms have been violated to apply to court, which is consolidated in the Constitution, imply not only the fact that in such cases the rights, freedoms, legitimate interests and legitimate expectations must and may be defended by means of construction of the Constitution and direct application of its provisions, but also that such protection must be guaranteed by courts” (Constitutional Court decision of 8 August 2006).

The aforesaid provisions of the constitutional doctrine formulated in the Constitutional Court decision of 8 August 2006 are mutatis mutandis also applicable to those legal situations where rights and freedoms of a person are violated because of the fact that an act of the President of the Republic or the Government has not been adopted, although its adoption is required by a certain legal act of higher power, inter alia by the Constitution.

12. The provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, which is being disputed by the petitioners, is to be construed by also taking account of the provisions entrenched in other articles of the Law on the Proceedings of Administrative Cases.

12.1. Paragraph 1 (wording of 19 September 2000) of Article 1 of the Law on the Proceedings of Administrative Cases prescribes that this law establishes the procedure for the hearing of administrative cases concerning disputes arising from administrative legal relations.

Under Paragraph 16 of Article 2 (wording of 7 June 2007) of the Law on the Proceedings of Administrative Cases, administrative legal relations are public relations developing in the process of implementation of public administration, which are regulated by laws and other normative legal acts.

Paragraph 1 of Article 2 (wording of 7 June 2007) of the Law on the Proceedings of Administrative Cases defines public administration as the activity of entities of public administration, which is regulated by laws and other legal acts and the purpose whereof is implementation of laws and other regulatory legal acts by adopting administrative decisions, rendering administrative services provided for by laws, administering the rendering of public services, and performing internal administration of an entity of public administration.

Under Paragraph 17 of Article 2 (wording of 7 June 2007) of the Law on the Proceedings of Administrative Cases, administrative disputes are conflicts of persons with the entities of public administration or conflicts between entities of public administration which are not subordinate to each other. The disputes between the employees and the administration as well as electoral disputes are also assigned to administrative disputes.

Paragraph 4 of Article 2 (wording of 7 June 2007) of the Law on the Proceedings of Administrative Cases prescribes that the entity of public administration is an institution, an establishment, an official, a state servant, or other natural or legal person who is authorised by laws to perform public administration.

Article 3 “Disputes over Points of Law” (wording of 19 September 2000 with the amendment of 7 June 2007) of the Law on the Proceedings of Administrative Cases prescribes:

1. The administrative court shall settle disputes over issues of law in public administration.

2. The court shall not offer assessment of the disputed administrative act and actions (or failure to act) from the point of view of political or economic expediency and shall only establish whether there has not been in a specific case an infringement of law or other legal act, whether the entity of administration has not exceeded its competence, also whether the act (deed) is not in conflict with the objectives and tasks for the purpose whereof the institution has been set up and vested with appropriate powers.”

Thus, administrative courts decide administrative cases concerning disputes arising from administrative legal relations, which emerge inter alia during the performance of public administration by state institutions. The Law on the Proceedings of Administrative Cases does not contain any provisions that administrative courts decide cases concerning disputes arising from other, not administrative, legal relations.

12.2. Paragraph 1 (wording of 19 September 2000) of Article 16 of the Law on the Proceedings of Administrative Cases prescribes: “Administrative courts shall not hear cases assigned to the competence of the Constitutional Court, also cases within the competence of courts of general jurisdiction or other specialised courts.”

Paragraph 2 (wording of 19 September 2000) of Article 4 of the Law on the Proceedings of Administrative Cases prescribes:

Provided that there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the court shall suspend the consideration of the case and, with regard to the competence of the Constitutional Court of the Republic of Lithuania, shall apply to it with a petition to decide whether the law or other legal act in question is in compliance with the Constitution. After the court has received the ruling of the Constitutional Court, the court shall renew the consideration of the case. The said rules shall be also applied in the cases when the court has doubts whether an act of the President of the Republic or the Government, which is applicable in a concrete case, is not in conflict with laws or the Constitution.”

Thus, administrative courts do not hear cases assigned to the competence of the Constitutional Court. The said courts must suspend the consideration of the case and apply to the Constitutional Court with a petition, provided that there are grounds to believe that an act of the President of the Republic or the Government, which is applicable in a concrete case, is in conflict with laws or the Constitution. Consequently, the formula “shall not hear cases” employed in Paragraph 1 (wording of 19 September 2000) of Article 16 of the Law on the Proceedings of Administrative Cases is to be construed as inter alia meaning that administrative courts may not decide as to whether inter alia an act of the President of the Republic or the Government is in conformity with the Constitution and laws. The said formula cannot be construed as meaning that administrative courts may not investigate the activities of the President of the Republic and the Government inasmuch as such investigation is necessary to substantiate doubts of these courts as regards the compliance of an act of the President of the Republic or the Government with the Constitution and laws.

13. While deciding whether the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, which is being disputed by the petitioners, is not in conflict with the provisions of the Constitution, it is necessary to elucidate the concept of the formula “the activities of the President of the Republic, the Government (as a collegial body)” of this provision.

13.1. As mentioned, under Paragraph 1 of Article 5 of the Constitution, the President of the Republic and the Government are institutions executing state power.

It has also been mentioned that the peculiarities of the constitutional status of the Seimas, the President of the Republic, the Government, and the Judiciary related with the implementation of state power and separation of state powers inter alia imply that these institutions may not take over the constitutional powers of each other, thus, also the courts to which persons concerned apply with petitions requesting to investigate acts adopted by the Seimas, the President of the Republic, or the Government or the activities of these institutions expressed in other ways may not take over the constitutional powers of the Seimas, the President of the Republic, or the Government, i.e. adopt corresponding decisions for these institutions of power or obligate the said institutions of power to pass acts related with the implementation of state power.

Thus, the formula “the activities of the President of the Republic, the Government (as a collegial body)” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases means such activities whereby state power is implemented. These activities may not be equated with the activities embraced by the notion “public administration” which is employed in the Law on the Proceedings of Administrative Cases.

13.2. In this context the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, which is being disputed in the constitutional justice case at issue, is to be construed as inter alia meaning that the subject matter of the administrative dispute under consideration in the administrative court may not be such activities of the President of the Republic or the Government whereby state power is implemented.

14. In the context of the constitutional justice case at issue it needs to be noted that, besides the discharge of state functions assigned to them, the institutions implementing state power also perform other activities, inter alia connected with the discharge of functions of internal administration. It also needs to be mentioned that the activities of the President of the Republic or the Government can also cause violation of rights or freedoms of a person, inter alia such activities can cause damage.

In this context it needs to be noted that Paragraph 1 of Article 15 “Cases within the Jurisdiction of Administrative Courts” of the Law on the Proceedings of Administrative Cases inter alia prescribes that administrative courts decide cases concerning the lawfulness of legal acts adopted and actions performed by the entities of state administration, also the lawfulness and reasonableness of the refusal of these entities to perform the actions which are attributed to their competence or procrastination to perform such actions (Item 1 (wording of 19 September 2000)), compensation for the damage resulting from the unlawful actions of the entities of public administration (Article 6.271 of the Civil Code) (Item 3 (wording of 7 June 2007)), as well as service-related disputes where one of the parties to the dispute is a state or municipal servant who has powers of public administration (including officials and heads of institutions) (Item 5 (wording of 19 September 2000)).

These provisions imply that administrative courts may consider cases inter alia concerning the result or consequence of the activities (failure to act) of the President of the Republic or the Government whereby the rights or freedoms of a person have been (could be) violated, inter alia concerning compensation for damage.

15. It needs to be held that the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases does not prevent the person, who believes that his rights and freedoms have been violated because of the activities of the President of the Republic or the Government, from implementing his right to apply to court, which is entrenched in Paragraph 1 of Article 30 of the Constitution.

It also needs to be held that the disputed legal regulation, established in Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases, also does not violate the constitutional imperatives that stem from Paragraph 1 of Article 109 of the Constitution, which provides that, in the Republic of Lithuania, justice shall be administered only by courts, and Paragraph 1 of Article 29 thereof, which provides that all persons shall be equal before the law, the court, and other state institutions and officials.

16. Taking account of the arguments set forth, one is to draw a conclusion that the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007) of Article 16 of the Law on the Proceedings of Administrative Cases is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 30, and Paragraph 1 of Article 109 of the Constitution.

IV

On the compliance of Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming.

1. The Vilnius Regional Administrative Court, a petitioner, requests inter alia to investigate whether Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming.

2. Decree of the President of the Republic No. 1K-988 of 29 May 2007 prescribes:

Article 1.

Pursuant to Item 10 of Article 84 of the Constitution of the Republic of Lithuania and taking into account decision of the Chief Official Ethics Commission No. KS-15 of 13 April 2006 and ruling of the Supreme Administrative Court of Lithuania No. A8–524/2007 of 24 May 2007, I hereby dismiss Petras NAVIKAS from the office of a member of the State Gaming Control Commission.

Article 2.

This decree shall come into force as from the day of its signing.”

3. While deciding whether Decree of the President of the Republic No. 1K-988 of 29 May 2007, whereby P. Navikas, a member of the State Gaming Control Commission, according to the petitioner, was dismissed from office on the grounds not provided for in the Law on Gaming, is not in conflict with Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming, it is important to elucidate the purpose and legal status of the State Gaming Control Commission.

4. On 17 May 2001, the Seimas adopted the Law on Gaming, which came into force (with a certain exception) on 1 July 2001. Article 26 (wording of 17 May 2001) of the Law on Gaming prescribed:

1. The activities of entities that organise gaming shall be supervised and controlled by the Control Commission. The Control Commission shall comprise 6 persons. The President of the Republic, the Speaker of the Seimas, and the Prime Minister shall each appoint two persons to the Control Commission. The Chairman of the Control Commission shall be elected from among its members. An administration comprised of regular employees shall be formed to perform the functions of the Control Commission. Its structure and positions, without exceeding the fund of annual remuneration for work established by the Government, shall be approved by the Chairman of the Control Commission.

2. The regulations of the Control Commission shall be approved by the Government.

3. The Control Commission shall have the objective of supervising and controlling, in accordance with the procedure established by legal acts, the organisation of gaming activities to ensure the protection of interests and rights of players and gaming organisers.”

5. On 4 July 2003, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 4, 6, 11, and 26 of the Law on Gaming, which came into force on 25 July 2003, by Article 4 whereof it amended Article 26 (wording of 17 May 2001) of the Law on Gaming and set it forth in a new wording.

Article 26 (wording of 4 July 2003) of the Law on Gaming prescribes:

1. The activities of entities that organise gaming shall be supervised and controlled by the Control Commission. The Control Commission shall comprise 6 persons. The President of the Republic, the Speaker of the Seimas, and the Prime Minister shall each appoint two persons to the Control Commission for a term of five years and shall dismiss the persons appointed.

2. The same person may be appointed a member of the Control Commission for not more than two successive terms. The Chairman of the Control Commission shall be elected from among its members for a term of five years. The Chairman of the Control Commission shall appoint one member of the Control Commission as Deputy Chairman and one member of the Control Commission as secretary of the Control Commission. The Chairman and members of the Control Commission must be citizens of the Republic of Lithuania.

3. Upon expiry of the term of office, members of the Control Commission shall continue to perform their duties until new members are appointed.

4. A member of the Control Commission may be dismissed prior to the end of his term of office if he:

1) resigns at his own request;

2) loses citizenship of the Republic of Lithuania;

3) does not work for more than 120 successive days or for more than 140 days within the last twelve months due to temporary incapacity or if a medical or disability commission concludes that he cannot perform his duties;

4) upon the entry into force of a court judgement convicting for a serious and grave premeditated crime or crime against property, property rights, property interests, the economy, and business practice or the financial system;

5) it transpires that he does not comply with the requirements laid down in Article 11 of this Law.

5. The President of the Republic of Lithuania, the Speaker of the Seimas, or the Prime Minister shall appoint other persons for a term of five years to the position of the members of the Control Commission dismissed prior to the end of their term in office.

6. A member of the Control Commission may only hold office in the Control Commission and may also be engaged in scientific research or teaching activity.

7. Members of the Control Commission shall be given incentives, be liable and be provided with social and other guarantees in accordance with the procedure provided for in the Labour Code of the Republic of Lithuania and other legal acts. Members of the Control Commission shall be remunerated in accordance with the Republic of Lithuania Law on the Remuneration of State Politicians, Judges, and State Officials.

8. An administration comprised of state servants and employees shall be formed to perform the functions of the Control Commission. Its structure and a list of positions, without exceeding the funds allocated for remuneration, shall be approved by the Chairman of the Control Commission.

9. The regulations of the Control Commission shall be approved by the Government.

10. The Control Commission shall have the objective of supervising and controlling, in accordance with the procedure established by legal acts, the organisation of gaming activities to ensure the protection of interests and rights of players and gaming organisers.”

6. Item 5 of Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming, which entrenches one of the grounds for dismissal from office of a member of the State Gaming Control Commission, makes reference to Article 11 (wording of 4 July 2003) of the Law on Gaming wherein it is prescribed:

1. Persons, or their close relatives and family members, in respect of whom an operational investigation is under way regarding the maintenance of an illegal gaming establishment (casino) or illegal organisation of gaming or belonging to a criminal association as well as persons with a conviction for serious or grave premeditated crimes or crimes against property, property rights, property interests, the economy, and business practice or the financial system which has not expired or has not been expunged may not be the founders (shareholders) of a gaming company or its controllers, members of its supervisory council and board of directors, heads of the administration and their deputies, chief financiers, heads of the administration of a gaming establishment (casino), bingo hall or gaming machine hall and their deputies, chief financiers, personnel members providing services to the players as well as members, state servants, and employees of the Control Commission.

2. The gaming organiser shall be responsible for the competence and professional skills of the personnel providing services to the players.”

7. Having compared the legal regulation established in Article 26 (wording of 4 July 2003) of the Law on Gaming with the one established in Article 26 (wording of 17 May 2001) of the Law on Gaming, it is clear that it has changed in essence: Article 26 (wording of 4 July 2003) of the Law on Gaming inter alia consolidates the list of the grounds for dismissal from office of a member of the State Gaming Control Commission, prescribes that a member of the State Gaming Control Commission may only hold office in the State Gaming Control Commission and may also be engaged in scientific research or teaching activity, and indicates that certain relations connected with the activities of a member of the State Gaming Control Commission are regulated by the Labour Code and other legal acts, and that the work is remunerated in accordance with the procedure established in the Law on the Remuneration of State Politicians, Judges, and State Officials.

8. At the time when disputed Decree of the President of the Republic No. 1K-988 of 29 May 2007, whereby P. Navikas was dismissed from the office of a member of the State Gaming Control Commission, was adopted, the relations connected with the activities of a member of the State Gaming Control Commission, inter alia his liability, were (and at present are) also regulated by other laws, inter alia the Law on the Adjustment of Public and Private Interests in the State Service, the Republic of Lithuania Law on the Remuneration of State Politicians, Judges, and State Officials, and the Republic of Lithuania Law on the State Service.

8.1. Article 1 of the Law on the Adjustment of Public and Private Interests in the State Service (wording of 17 February 2000 with subsequent amendments and supplements) provides that the purpose of this law is adjustment of private interests of persons employed in the state service and public interests of society, ensuring that holders of public office make decisions solely in terms of the public interests, securing the impartiality of the decisions being taken and preventing the emergence and spread of corruption in the state service.

Article 3 of the Law on the Adjustment of Public and Private Interests in the State Service (wording of 17 February 2000) inter alia provides for the following obligations of persons working in the state service: to discharge their service-related duties impartially, honestly and properly; to avoid conflict of interests in accordance with the procedure and measures laid down by laws; to refrain from using the official position for personal gains.

Paragraph 1 (wording of 17 February 2000) of Article 13 of this law prescribes that the person in the state service may not use his duties, powers and name in order to exert influence upon the decision of other persons, which would create the conflict of interests.

Paragraph 1 (wording of 22 June 2006) of Article 2 of the Law on the Adjustment of Public and Private Interests in the State Service prescribed that persons in the state service are state politicians, state officials, state servants, servicemen of professional military service who carry out operational activities, officers of professional military service, other persons who are employed at institutions of state power and state administration, at municipal, judicial, law enforcement, state control and supervision institutions, also at any comparable institutions and who perform the functions of a representative of public authority or have administrative powers vested in them, also persons who are employed at state and municipal enterprises or budgetary establishments and who have administrative powers vested in them, as well as persons who are employed at public establishments which are financed from the Lithuanian national or municipal budgets and funds and who have administrative powers vested in them.

Thus, at the time when the disputed decree of the President of the Republic was adopted, the Law on the Adjustment of Public and Private Interests in the State Service was applied to state officials to its full extent. It needs to be noted that the provision of Paragraph 1 of Article 2 of the Law on the Adjustment of Public and Private Interests in the State Service that persons in the state service are inter alia state officials is also valid at the time of the consideration of the constitutional justice case at issue. Consequently, the Law on the Adjustment of Public and Private Interests in the State Service is applied to state officials at present as well.

8.2. Paragraph 3 (wording of 19 July 2006) of Article 2 of the Law on the Remuneration of State Politicians, Judges, and State Officials inter alia prescribes that:

The amounts of remuneration for work and the conditions of payment thereof, set by this Law, shall also apply to those state officials to whom the Republic of Lithuania Law on the State Service does not apply (hereinafter referred to as “state officials”):

<...>

9) the chairpersons, deputy chairpersons and members of the state (standing) commissions and councils, who are appointed under special laws by the Seimas, the President of the Republic, others.”

Thus, under the said law, chairpersons and members of commissions who are appointed by the President of the Republic are to be ascribed to state officials.

8.3. In this context it needs to be mentioned that under Paragraph 3 (wording of 13 July 2004) of Article 4 of the Law on the State Service, state officials appointed by the President of the Republic were subject to Paragraph 3 of Article 33 of this law regulating inter alia compensation for the damage inflicted by decisions of a collegiate state institution upon this institution and Article 36 thereof regulating the annual leave (save those state officials whose annual leave is regulated by special laws). It needs to be noted that the provision of Paragraph 3 of Article 4 of the Law on the State Service, which stipulates that state officials appointed by the President of the Republic are subject to Paragraph 3 of Article 33 of this law regulating inter alia compensation for the damage inflicted by decisions of a collegiate state institution upon this institution as well as Article 36 regulating the annual leave (save those state officials whose annual leave is regulated by special laws), is also valid at the time of the consideration of the constitutional justice case at issue. Consequently, the Law on the State Service, save the provisions thereof concerning compensation for the damage and granting of the annual leave, was not (and is not) applied to state officials appointed by the President of the Republic.

It has been mentioned that Paragraph 1 of Article 26 (wording of 4 July 2003) of the Law on Gaming prescribes that the Control Commission shall comprise 6 persons and that the President of the Republic, the Speaker of the Seimas, and the Prime Minister shall each appoint two persons to the Control Commission for a term of five years and shall dismiss the persons appointed.

8.4. Thus, summing up the discussed legal regulation, it needs to be held that a member of the State Gaming Control Commission is a state official who is appointed and dismissed by the President of the Republic in accordance with the special law—the Law on Gaming—and who was (and is), to the full extent, subject to inter alia the Law on the Adjustment of Public and Private Interests in the State Service.

9. Article 23 “The Chief Official Ethics Commission” (wording of 17 February 2000 with the amendments and/or supplements made till 1 July 2008) of the Law on the Adjustment of Public and Private Interests in the State Service, which was valid at the time of the adoption of disputed decree of the President of the Republic No. 1K-988 of 29 May 2007, whereby P. Navikas was dismissed from the office of a member of the State Gaming Control Commission, inter alia prescribed: the Chief Official Ethics Commission shall be comprised of 5 persons (Paragraph 1 (wording of 17 February 2000)); the President of the Republic, the Seimas Speaker, the Prime Minister, the President of the Supreme Court of Lithuania, and the Lithuanian Lawyers’ Association shall each appoint one person as a member of the Chief Official Ethics Commission. A person appointed must be of impeccable reputation. The composition of the Chief Official Ethics Commission shall be approved by the Seimas (Paragraph 2 (wording of 5 July 2005)); the Chief Official Ethics Commission is accountable to the Seimas (Paragraph 5 (wording of 5 July 2005)); the Chief Official Ethics Commission shall bring an action in court for the termination of state service relations with persons in the state service due to violation of the requirements of this law or the termination or invalidation of employment contracts and transactions concluded in violation of the requirements of this law (Item 2 of Paragraph 6 (wording of 6 November 2003)) and it may apply to the President of the Republic regarding the dismissal of officials appointed by him or propose that the investigation would be initiated if the reasoned information has been obtained that the officials appointed by the President of the Republic do not comply with the requirements of this law (Item 4 of Paragraph 6 (wording of 6 November 2003)); complaints may be lodged against decisions of the Chief Official Ethics Commission with the administrative court within one month after the day of the announcement of the decision or the delivering of its copy to the person concerned (Paragraph 7 (wording of 6 November 2003)); the decision of the Chief Official Ethics Commission regarding the violation of the Law on the Adjustment of Public and Private Interests in the State Service, against which no complaints have been lodged and which has not been suspended or repealed in the manner prescribed by laws, shall be grounds, in accordance with the procedure laid down by legal acts, to impose a service-related (disciplinary) penalty on the person who has violated the requirements of this law as well as to apply other restrictions and prohibitions established in Article 15 of this law (Paragraph 8 (wording of 6 November 2003)).

10. Thus, under Article 23 (wording of 17 February 2000 with the amendments and/or supplements made till 1 July 2008) of the Law on the Adjustment of Public and Private Interests in the State Service, state officials, inter alia members of the State Gaming Control Commission, who have violated the requirements of this law, could incur service-related (disciplinary) penalties, inter alia the dismissal of the official from office.

11. Alongside, it needs to be mentioned that any types of service-related (disciplinary) penalties were not (and are not) enumerated in the Law on the Adjustment of Public and Private Interests in the State Service, they are specified in the Law on the State Service and the Labour Code.

Paragraph 3 of Article 29 “Service-related Penalties” (wording 4 July 2003) of the Law on the State Service prescribes that for service-related transgressions one of the following service-related penalties may be imposed on a state servant: 1) a note of warning; 2) a reprimand; 3) a severe reprimand; 4) dismissal from office.

Article 237 “Disciplinary Penalties” (wording of 4 June 2002) of the Labour Code prescribes that for violation of work discipline the following disciplinary penalties may be imposed: 1) a note of warning; 2) a reprimand; 3) dismissal from work (Paragraph 3 of Article 136 of the Code); laws and other normative legal acts regulating work discipline may also establish other disciplinary penalties to certain categories of employees.

Paragraph 1 (wording of 4 June 2002) of Article 11 of the Labour Code provides that: “In case there are contradictions between this norm of the Code and the provisions of other law or normative legal act, the norm of this Code shall be applied.”

12. Thus, under both the Law on the State Service and the Labour Code, dismissal from office (work) is one of the types of penalties.

13. Summing up the legal regulation of relations connected with the liability of a member of the State Gaming Control Commission, which was valid at the time of the adoption of the disputed decree of the President of the Republic, it needs to be noted that a member of the State Gaming Control Commission could be dismissed from office not only on the grounds specified in Paragraph 4 of Article 26 (wording of 6 November 2003) of the Law on Gaming, but also on the grounds that arise from Item 4 (wording of 6 November 2003) of Paragraph 6 and Paragraph 8 (wording of 6 November 2003) of Article 23 of the Law on the Adjustment of Public and Private Interests in the State Service.

14. It has been mentioned that the Vilnius Regional Administrative Court, a petitioner, requests inter alia to investigate whether Decree of the President of the Republic No. 1K-988, whereby P. Navikas was dismissed from the office of a member of the State Gaming Control Commission, is not in conflict with Item 10 of Article 84 of the Constitution.

15. Item 10 of Article 84 of the Constitution provides that the President of the Republic shall appoint and dismiss, according to the established procedure, state officials provided for by laws.

15.1. In the context of the constitutional justice case at issue it needs to be noted that the powers of the President of the Republic entrenched in Item 10 of Article 84 of the Constitution mean that the legislator is allowed to establish as to what state officials shall be appointed and dismissed by the President of the Republic, also that the legislator must establish the grounds for appointment and dismissal of such officials from office. Under Item 10 of Article 84 of the Constitution, requirements set for state officials who are appointed by the President of the Republic must be established in laws, inter alia requirements of ethical and moral nature: the state official must be of impeccable reputation; the conduct of the state official, both that related with direct performance of his duties and that related with his activities which are not connected with his duties, must not discredit the name of the state official and the authority of the state institution wherein he performs his duties.

15.2. It needs to be held that the President of the Republic, while implementing the powers entrenched in Item 10 of Article 84 of the Constitution to appoint state officials provided for by laws, may choose (by following the requirements set out in laws for state officials who are appointed by him) as to what person is to be appointed as a state official, while, upon the proposal, according to the established procedure, of corresponding institutions or officials that a certain person be appointed as a state official, decide whether that person is suitable to hold the corresponding office of a state official, to which, under law, one is appointed by the President of the Republic. The legislator, while establishing the grounds for dismissal of the said state officials from office, must pay heed to the constitutional principle of a state under the rule of law, inter alia meaning that state officials who violate the Constitution and laws, who raise personal or group interests above the interests of society, and discredit state power by their actions must be brought to legal liability under the procedure established by laws. The Constitution does not tolerate any such legal and factual situation where the state officials and other persons adopting decisions important to the society and the state, who, in accordance with the established procedure, are recognised not to avoid the contraposition of public and private interests, to act with objectives that are incompatible with public interests, to raise personal or group interests above the interests of society and the state, and to discredit the name of the official by their actions, would not be brought to legal liability, inter alia dismissed from the office held.

15.3. Item 10 of Article 84 of the Constitution also means that the President of the Republic, while appointing and dismissing state officials provided for by laws, must follow the grounds for dismissal of state officials which are laid down in laws as well as the procedure for appointment and dismissal of state officials which is established in laws and/or other legal acts. The same requirements also arise from Paragraph 2 of Article 5 of the Constitution, wherein it is established that the scope of power shall be limited by the Constitution, Paragraph 2 of Article 77 of the Constitution, wherein inter alia it is established that the President of the Republic shall perform everything with which he is charged by the Constitution and laws, as well as the constitutional principle of a state under the rule of law, which implies the hierarchy of legal acts.

16. In this context it needs to be noted that in a democratic state under the rule of law all state institutions and officials must follow the Constitution and laws. The responsibility of state power for the public is inseparable from the constitutional principle of a state under the rule of law; the responsibility is constitutionally consolidated by establishing that state institutions serve the people, that the scope of power is limited by the Constitution, that the state officials who violate the Constitution and laws, who raise personal or group interests above the interests of society, by their actions discredit state power, may be removed from office under the procedure established in laws (Constitutional Court conclusion of 31 March 2004).

Also it needs to be noted that, according to the Constitution, the legislator has a duty to establish by legal acts such legal regulation which would ensure that state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, are able to properly execute their authority, so that contraposition of public and private interests would be avoided, 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 or group interests, 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, so that it might be possible to effectively control how state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, follow the said requirements, and that the above-mentioned state officials and other persons be held liable pursuant to the Constitution and law in case they do not follow these requirements (Constitutional Court rulings of 1 July 2004 and 13 December 2004).

State officials must enjoy the confidence of the citizens—the state community (Constitutional Court ruling of 25 May 2004). However, in order that the citizens—the state community—could reasonably trust the state officials, that it would be possible to ascertain that all the state institutions and all the state officials follow the Constitution as well as law and obey them, while those who do not obey the Constitution and law would not hold the office for which the confidence of the citizens—the state community—is needed, a public democratic control over the activity of the state officials and their accountability to the society comprising inter alia a possibility to remove from office the state officials who violate the Constitution and law, who bring their personal interests or the interests of the group above the interests of society, or who discredit state authority by their actions, is needed (Constitutional Court rulings of 25 May 2004, 1 July 2004, and 13 December 2004).

17. The Constitutional Court has held more than once that one of the essential elements of the principle of a state under the rule of law established in the Constitution is legal certainty and legal clarity. The imperative of legal certainty and legal clarity implies certain obligatory requirements for the legal regulation: it must be clear and harmonious, legal norms must be formulated precisely, they may not contain ambiguities (Constitutional Court rulings of 30 May 2003, 26 January 2004, 24 December 2008, and 22 June 2009, as well as decision of 20 April 2010).

It needs to be especially emphasised that the legislator, while regulating relations connected with appointment and dismissal from office of persons, inter alia state officials, must establish clear and harmonious legal regulation so that it would not be construed in a varied manner.

18. In this context it needs to be noted that, in its ruling of 13 December 2004, the Constitutional Court held that 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 pre-conditions for appearance of such conflicts should be created; the opportunities provided by the state service should not be used for private benefit.

19. While deciding whether Decree of the President of the Republic No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007, whereby P. Navikas, a member of the State Gaming Control Commission, according to the petitioner, was dismissed from office on the grounds not provided for in the Law on Gaming, is not in conflict with Item 10 of Article 84 of the Constitution and Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming, it is important also to elucidate whether the President of the Republic was allowed to dismiss the said official under the Constitution and laws.

19.1. From the provisions of the disputed decree of the President of the Republic it is clear that the President of the Republic passed this decree by taking into account the decision of the Chief Official Ethics Commission and the ruling of the Supreme Administrative Court of Lithuania.

19.2. From the material of the administrative case considered by the Vilnius Regional Administrative Court wherein it was decided to apply to the Constitutional Court, it is clear that, in its ruling of 24 May 2007, the Supreme Administrative Court of Lithuania, in the presence of P. Navikas, the petitioner, having considered the administrative case subsequent to his appeal, in the public court hearing, held that by the decision of the Chief Official Ethics Commission P. Navikas had been recognised lawfully and fairly as having violated the provisions of Paragraph 2 of Article 7 and Paragraph 1 of Article 13 of the Law on the Adjustment of Public and Private Interests in the State Service (ruling of the Supreme Administrative Court of Lithuania of 24 May 2007 in administrative case No. A8 – 524/2007).

Thus, P. Navikas was recognised as having violated the provisions of Paragraph 2 of Article 7 and Paragraph 1 of Article 13 of the Law on the Adjustment of Public and Private Interests in the State Service by the decision of the Chief Official Ethics Commission, which, by an effective ruling of the Supreme Administrative Court of Lithuania of 24 May 2007, was left to be in force.

The facts established by an effective court decision are res judicata, they have prejudicial meaning, and, when deciding the constitutional justice case at issue, they are not proved anew. Thus, in this constitutional justice case it will not be investigated whether P. Navikas, before the President of the Republic issued the disputed decree, had committed the violations of the provisions of the Law on the Adjustment of Public and Private Interests in the State Service, for which he was dismissed from the office of a member of the State Gaming Control Commission.

19.3. In this Constitutional Court ruling it has been held that the powers of the President of the Republic established in Item 10 of Article 84 of the Constitution mean that the legislator is allowed to establish as to what state officials shall be appointed and dismissed by the President of the Republic, also that the legislator must establish the grounds for appointment and dismissal from office of such officials.

It has been mentioned that Article 26 (wording of 4 July 2003) of the Law on Gaming regulates inter alia the grounds for dismissal from office of a member of the State Gaming Control Commission. However, such legal regulation in itself does not mean that certain relations connected with the aforementioned relations may not be regulated altogether by other laws as well.

In this ruling it has been held that a member of the State Gaming Control Commission is a state official who is appointed by the President of the Republic in accordance with a special law—the Law on Gaming—and who was (and is), to the full extent, subject to inter alia the Law on the Adjustment of Public and Private Interests in the State Service.

It has been mentioned that in the disputed decree of the President of the Republic it is indicated that the President of the Republic has passed this decree by following Item 10 of Article 84 of the Constitution as well as by taking into account the decision of the Chief Official Ethics Commission No. KS-15, whereby P. Navikas was recognised as having violated the requirements of the Law on the Adjustment of Public and Private Interests in the State Service, and the ruling of the Supreme Administrative Court of Lithuania, whereby decision of the Chief Official Ethics Commission No. KS-15 was left to be in force.

19.4. It has been held in this Constitutional Court ruling that, under Item 10 of Article 84 of the Constitution, the requirements set for state officials who are appointed by the President of the Republic must be established in laws, inter alia the requirements of ethical and moral nature: the state official must be of impeccable reputation; the conduct of the state official, both that related with direct performance of his duties and that related with his activities which are not connected with his duties, must not discredit the name of the state official and the authority of the state institution wherein he performs his duties. It has also been held that the Constitution does not tolerate any such legal and factual situation where the state officials and other persons adopting decisions important to the society and the state, who, in accordance with the established procedure, are recognised as having not avoided the contraposition of public and private interests, acted with objectives that are incompatible with public interests, raised personal or group interests above the interests of the society and the state, and discredited the name of the official by their actions, would not be brought to legal liability, inter alia dismissed from the office held.

19.5. It has been mentioned that under Article 23 (wording of 17 February 2000 with the amendments and/or supplements made till 1 July 2008) of the Law on the Adjustment of Public and Private Interests in the State Service, the state officials who have violated the requirements of this law could incur service-related (disciplinary) penalties, inter alia the dismissal of the official from office.

It has also been mentioned that a member of the State Gaming Control Commission could be dismissed from office not only on the grounds specified in Paragraph 4 of Article 26 (wording of 6 November 2003) of the Law on Gaming, but also on the grounds that arise from Item 4 (wording of 6 November 2003) of Paragraph 6 and Paragraph 8 (wording of 6 November 2003) of Article 23 of the Law on the Adjustment of Public and Private Interests in the State Service.

19.6. Accordingly, the President of the Republic had the discretion to assess whether the violations of the Law on the Adjustment of Public and Private Interests in the State Service committed by P. Navikas, who had been appointed a member of the State Gaming Control Commission by the President of the Republic, were such for which the most severe service-related (disciplinary) penalty—dismissal from office—could be imposed.

20. It needs to be noted that the aforesaid provision of Article 23 of the Law on the Adjustment of Public and Private Interests in the State Service that the Chief Official Ethics Commission may apply to the President of the Republic regarding the dismissal of the officials appointed by him (Item 4 of Paragraph 6 (wording of 6 November 2003)) cannot be construed as meaning that the President of the Republic, while deciding whether to dismiss an official appointed by him from the corresponding office in the case when the violation of the Law on the Adjustment of Public and Private Interests in the State Service committed by this official is established by the decision of the Chief Official Ethics Commission (all the more so that such establishment has been verified and left to be in force by the decision of the corresponding court, which is final and not subject to appeal), is bound by the application by the said commission.

In the context of the constitutional justice case at issue it needs to be noted that in the case of absence of the said application by the Chief Official Ethics Commission the President of the Republic has also the powers to dismiss the official appointed by him from office, who has been recognised as having violated the requirements of the Law on the Adjustment of Public and Private Interests in the State Service. A different construction of the provisions of the aforesaid law, which are related with the powers of the President of the Republic to dismiss the official appointed by him from office, who has been recognised as having violated the requirements of the Law on the Adjustment of Public and Private Interests in the State Service, would not be in line with the Constitution, inter alia with the constitutional empowerment of the President of the Republic, according to the established procedure, to appoint and dismiss the state officials provided for by laws.

21. As mentioned, the Constitution does not tolerate any such legal and factual situation where the state officials and other persons adopting decisions important to the society and the state, who, in accordance with the established procedure, are recognised not to avoid the contraposition of public and private interests, to act with objectives that are incompatible with public interests, to raise personal or group interests above the interests of the society and the state, and to discredit the name of the official by their actions, would not be brought to legal liability, inter alia dismissed from the office held.

22. It needs to be held that the fact that in the disputed decree of the President of the Republic it is indicated that it has been passed by taking into account the decision of the Chief Official Ethics Commission, whereby P. Navikas was recognised as having violated the requirements of the Law on the Adjustment of Public and Private Interests in the State Service, and the ruling of the Supreme Administrative Court of Lithuania, whereby the decision of the Chief Official Ethics Commission was left to be in force, means that P. Navikas was dismissed from the office of a member of the State Gaming Control Commission on the grounds that are established in Article 23 (wording of 17 February 2000 with the amendments and/or supplements made till 1 July 2008) of the Law on the Adjustment of Public and Private Interests in the State Service.

The mere fact that Paragraph 4 of Article 26 (wording of 6 November 2003) of the Law on Gaming does not prescribe that a member of the State Gaming Control Commission may be dismissed from office on the grounds established in other laws does not mean that other laws may not provide also for the grounds for dismissal of a member of the State Gaming Control Commission from office other than those prescribed in Paragraph 4 of Article 26 (wording of 6 November 2003) of the Law on Gaming. Such grounds arise from Article 23 (wording of 17 February 2000 with the amendments and/or supplements made till 1 July 2008) of the Law on the Adjustment of Public and Private Interests in the State Service.

23. Taking account of the arguments set forth it needs to be held that Decree of the President of the Republic No. 1K-988 of 29 May 2007, whereby P. Navikas was dismissed from the office of a member of the State Gaming Control Commission, is not in conflict with Paragraph 4 of Article 26 (wording of 4 July 2003) of the Law on Gaming.

24. Having held that P. Navikas was dismissed from the office of a member of the State Gaming Control Commission not on the grounds of the Law on Gaming, but those established in the Law on the Adjustment of Public and Private Interests in the State Service, there are no legal arguments to hold that Decree of the President of the Republic No. 1K-988 of 29 May 2007 is in conflict with Item 10 of Article 84 of the Constitution.

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

ruling:

1. To recognise that the provision “Investigation of the activities of the President of the Republic <...>, the Government (as a collegial body) <...> shall be outside the jurisdiction of administrative courts” of Paragraph 2 (wording of 18 December 2007; Official Gazette Valstybės žinios, 2007, No. 140-5758) of Article 16 of the Republic of Lithuania Law on the Proceedings of Administrative Cases is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Decree of the President of the Republic of Lithuania No. 1K-988 “On the Dismissal of a Member of the State Gaming Control Commission” of 29 May 2007 (Official Gazette Valstybės žinios, 2007, No. 61-2347) is not in conflict with Paragraph 4 of Article 26 (wording of 4 July 2003) of the Republic of Lithuania Law on Gaming and the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:       Armanas Abramavičius

                                                              Toma Birmontienė

                                                              Pranas Kuconis

                                                              Kęstutis Lapinskas

                                                              Zenonas Namavičius

                                                              Ramutė Ruškytė

                                                              Egidijus Šileikis

                                                              Algirdas Taminskas

                                                              Romualdas Kęstutis Urbaitis