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On accepting a petition of the petitioner

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION

ON ACCEPTING THE PETITION OF THE ŠIAULIAI REGIONAL COURT, THE PETITIONER, REQUESTING TO CONSTRUE PROVISIONS OF THE RULINGS OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 9 MAY 2006 AND 22 OCTOBER 2007

22 April 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 procedural sitting of the Constitutional Court considered a petition (No. 1B-16/2010) of the Šiauliai Regional Court, the petitioner, requesting to construe whether:

the provision “a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished, he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge;

the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that such a judge enjoys full-fledged powers only in the concrete cases which are indicated in the decree of the President of the Republic;

the provision that a judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished.

The Constitutional Court

has established:

The Šiauliai Regional Court, the petitioner, was investigating a civil case. By its ruling the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to construe whether:

the provision “a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished, he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge;

the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that such a judge enjoys full-fledged powers only in the concrete cases which are indicated in a decree of the President of the Republic;

the provision that a judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished.

This petition of the Šiauliai Regional Court, the petitioner, was received at the Constitutional Court on 26 March 2010.

The Constitutional Court

holds that:

I

1. Under Paragraph 1 of Article 61 of the Law on the Constitutional Court, the Constitutional Court may officially construe its ruling at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

Under Paragraph 1 of Article 60 of the Law on the Constitutional Court, a Constitutional Court ruling shall be sent to the justices of the Constitutional Court, the parties to the case, the Seimas, the President of the Republic, the Government, the President of the Supreme Court, the Prosecutor General, and the Minister of Justice. Under Paragraph 2 of Article 60 of the Law on the Constitutional Court, the President of the Constitutional Court may order that a Constitutional Court ruling be sent to other institutions, officials, or citizens.

Item 93 of the Rules of the Constitutional Court inter alia prescribes that the instruction to send the ruling according to Paragraph 2 of Article 60 of the Law on the Constitutional Court is given by the President of the Constitutional Court by issuing an order.

Under Order of the President of the Constitutional Court No. 4B-10 “On Sending Final Acts of the Constitutional Court” of 29 March 2004, final acts of the Constitutional Court, besides the institutions enumerated in the Rules of the Constitutional Court, are sent to the Speaker of the Seimas of the Republic of Lithuania, the Prime Minister of the Republic of Lithuania, the President of the Court of Appeal of Lithuania, and the President of the Supreme Administrative Court of Lithuania.

In the constitutional justice cases wherein the Constitutional Court rulings of 9 May 2006 and 22 October 2007 as well as the decision of 15 May 2009, which are requested for construction, were adopted, the Šiauliai Regional Court was not a party to the case, the said court is not such an entity to which, under Paragraph 1 of Article 60 of the Law on the Constitutional Court, a ruling of the Constitutional Court must be sent.

2. Paragraph 1 of Article 110 of the Constitution prescribes that a judge may not apply a law, which is in conflict with the Constitution, while Paragraph 2 thereof stipulates that in cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution. If the court, after it has faced doubts as regards the compliance of the law applicable in the case with the Constitution, did not suspend the consideration of the case and did not apply to the Constitutional Court so that these doubts could be removed, and if the legal act the compliance of which with the Constitution is doubtful was applied in the case, the court would take a risk to adopt such a decision, which would not be a just one (Constitutional Court rulings of 16 January 2006 and 28 March 2006).

Under the Constitution, the grounds to initiate a constitutional justice case at the Constitutional Court are the doubts which arise to the court (judge) that is considering a concrete case, regarding the conformity of the legal act applicable in that case with the Constitution (other legal act of higher power), which must be removed so that the said court could adopt a just decision (other final court act) in that case. It is only the Constitutional Court that can remove such doubts (i.e. deny or confirm their reasonableness) within its competence (Constitutional Court ruling of 24 October 2007).

The Constitutional Court ruling of 28 March 2006 held:

if a petitioner—a court which is considering a case—applies to the Constitutional Court requesting to investigate and decide whether a legal act (part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum, which is applicable in that case, is not in conflict with a legal act of higher power, inter alia (and, first of all) with the Constitution, and if the Constitutional Court does not decide this question in essence, the doubts of the said court on whether the corresponding law or other legal act (part thereof) is not in conflict with a legal act of higher power, inter alia (and, first of all) with the Constitution, would not be removed, and if it applies that law or other legal act (part thereof), the values, inter alia constitutional rights of the person, entrenched in and defended and protected by the Constitution, could be violated;

the comparison of the applications of courts (both, of general jurisdiction and specialised) to the Constitutional Court with the petition requesting to investigate and decide whether a legal act (part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum is not in conflict with a legal act of higher power, inter alia (and, first of all) with the Constitution, as well as the comparison of the applications of other entities indicated in Article 106 of the Constitution shows that the applications of courts are special ones also because the courts, having doubted on the compliance of a legal act (part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum with a legal act of higher power, inter alia (and, first of all) with the Constitution, not only may but also must apply to the Constitutional Court;

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

3. In its acts the Constitutional Court has held more than once that the purpose of the institute of construction of Constitutional Court rulings and other final acts is to disclose the contents and meaning of corresponding Constitutional Court rulings or other final acts more broadly and in more detail, if it is necessary, in order to ensure proper execution of that Constitutional Court ruling or other final act so that this Constitutional Court ruling or other final act would be followed.

Thus, if a court which is considering a case applies to the Constitutional Court with a petition requesting to construe corresponding provisions of a Constitutional Court ruling or other final act, and if the Constitutional Court does not construe the provisions of the Constitutional Court ruling or other final act and does not reveal the contents and meaning thereof more broadly and in more detail, if it is necessary, in order to ensure proper execution of that Constitutional Court ruling or other final act so that this Constitutional Court ruling or other final act would be followed, the values, inter alia constitutional rights of the person, entrenched in and defended and protected by the Constitution, could be violated, and this would mean that justice would not be administered.

The Constitutional Court, while construing Article 109 of the Constitution, wherein it is established that, in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1), that, while administering justice, the judge and courts shall be independent (Paragraph 2), that, when considering cases, judges shall obey only the law (Paragraph 3), and that the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4), has held more than once (inter alia in its rulings of 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006, 24 October 2007, 15 March 2008, 17 September 2008, and 10 April 2009) that courts, while administering justice, must ensure the implementation of the rights established in the Constitution, the laws and other legal acts, they must guarantee the supremacy of law and protect human rights and freedoms. A duty to courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions (Constitutional Court rulings of 15 May 2007, 24 October 2007, 21 January 2008, 15 March 2008, 17 September 2008, and 10 April 2009). The principle of justice entrenched in the Constitution as well as the provision that justice is administered solely by courts mean that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision; the constitutional concept of justice implies not only a formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts) which by their content are not unjust; the justice administered by the court only formally is not the justice which is consolidated in and protected and defended by the Constitution (Constitutional Court rulings of 21 September 2006, 24 October 2007, 21 January 2008, 20 February 2008, 15 March 2008, 17 September 2008, and 10 April 2009).

4. In this context it needs to be noted that the right of the Constitutional Court, which is entrenched in Paragraph 1 of Article 61 of the Law on the Constitutional Court, to officially construe a ruling inter alia on its own initiative means that the Constitutional Court construes its rulings or other final acts, i.e. reveals the contents and meaning of these acts more broadly and in more detail, if it is necessary, in order to ensure proper execution of a corresponding Constitutional Court ruling or other final act, also so that a Constitutional Court ruling or other final act would be not formally, but properly followed and the justice, consolidated in and protected and defended by the Constitution, would be administered. The powers of the Constitutional Court to ex officio construe its rulings or other final acts also mean that the Constitutional Court may construe its rulings or other final acts, if it is necessary, so that acts adopted by the Constitutional Court would be followed properly while administering justice, irrespective of the fact whether a petition of the entities indicated in the Law on the Constitutional Court is present.

Taking account of the said circumstances, it needs to be held that having established a constitutionally grounded interest of a petitioner—a court which is considering a case—to remove doubts as regards proper execution of Constitutional Court rulings or other final acts (provisions thereof) in order that justice would be properly administered in the case considered by the court, the Constitutional Court may accept requests to construe provisions of a Constitutional Court ruling or other final act, investigate these requests in the manner prescribed by law and announce a corresponding decision.

II

1. It has been mentioned that the Šiauliai Regional Court, the petitioner, requests inter alia to construe whether the provision “a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished, he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge.

It needs to be noted that the Constitutional Court ruling of 9 May 2006 does not contain the provision which is formulated in the way indicated by the petitioner. In the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of this ruling, it is inter alia held: “<...> The Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted).”

It also needs to be noted that the provision “at the time when the consideration of the said cases is not yet finished, he is a full-fledged judge” indicated in the petition of the Šiauliai Regional Court is set forth not in the Constitutional Court ruling of 9 May 2006, as it is maintained by the petitioner, but in the Constitutional Court ruling of 22 October 2007. In addition, the said provision, the construction of which is requested by the petitioner, is a fragment of the provisions set forth in the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007. In the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007, it is inter alia held: “At the time when the consideration of the said cases is not yet finished, the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges.”

Alongside, it needs to be mentioned that the provisions of the Constitutional Court rulings of 9 May 2006 and 22 October 2007, the construction of which is requested by the Šiauliai Regional Court, the petitioner, are only repeated in the Constitutional Court decision of 15 May 2009.

Thus, the request of the Šiauliai Regional Court to construe whether the provision “a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted), and at the time when the consideration of the said cases is not yet finished, he is a full-fledged judge” of Item 15.3.1.1 of the reasoning part of the Constitutional Court ruling of 9 May 2006, which, according to the petitioner, is repeated in Item 12.2 of the Constitutional Court ruling of 22 October 2007 as well as Item 8 of Section II of the Constitutional Court ruling of 15 May 2009, means that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge is to be treated as the request to construe whether the provision “<...> a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006 as well as the provision “At the time when the consideration of the said cases is not yet finished, the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 mean that the powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge.

2. It has been mentioned that the Šiauliai Regional Court, the petitioner, requests inter alia to construe whether the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that such judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic.

It needs to be noted that the provision “a full-fledged judge”, the construction of which is requested by the Šiauliai Regional Court, is set forth in the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007. The said provision of the Constitutional Court ruling of 22 October 2007, the construction of which is requested by the Šiauliai Regional Court, is only repeated in the Constitutional Court decision of 15 May 2009.

Thus, the request of the Šiauliai Regional Court to construe whether the provision “a full-fledged judge”, formulated in Constitutional Court rulings, means that such a judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic is to be treated as the request to construe whether the provision “a full-fledged judge” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 means that such a judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic on the extension of powers of the judge.

3. It has been mentioned that the Šiauliai Regional Court, the petitioner, requests inter alia to construe whether the provision that a judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished.

It needs to be noted that Constitutional Court rulings do not contain the provision which is formulated in the way indicated by the petitioner. The second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia holds that a judge whose powers have been extended “has the same workload (inter alia because of the fact that in the said court, the position of the judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have.”

Thus, the request of the Šiauliai Regional Court to construe whether the provision that a judge, during the period of the extension of his powers, has to receive the same workload as other judges of that court means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished, is to be treated as the request to construe whether the provision that a judge whose powers have been extended “has the same workload (inter alia because of the fact that in the said court, the position of the judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Paragraph 3 of Article 22, Article 25, 28, and Paragraph 1 of Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To accept the petition of the Šiauliai Regional Court requesting to construe whether:

the provision “<...> a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted)” of the second paragraph of Item 15.3.1.1 of Chapter II of the reasoning part of the Constitutional Court ruling of 9 May 2006” and the provision “At the time when the consideration of the said cases is not yet finished, the said judge is a full-fledged judge: while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration which stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 mean that powers of such a judge are limited by the cases which are indicated in the decree of the President of the Republic on the extension of powers of such a judge;

the provision “a full-fledged judge” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 means that a judge enjoys full-fledged powers only in the concrete cases indicated in the decree of the President of the Republic on the extension of powers of the judge;

the provision that a judge whose powers have been extended “has to receive the same workload (inter alia because of the fact that in the said court, the position of the judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 means that, during the period of the extension of his powers, such a judge may also consider (be a judge-rapporteur, a judge, and a member of the college) other cases, which are not indicated in the decree of the President of the Republic, as long as the cases indicated in the decree of the President of the Republic are not finished.

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

The decision 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