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On a limitation on the right of servicemen of professional military service to work in another job

Case No. 2/2014

 

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 7 (WORDING OF 2 JULY 2013) OF ARTICLE 36 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE ORGANISATION OF THE NATIONAL DEFENCE SYSTEM AND MILITARY SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

4 November 2015, No. KT29-N18/2015

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, and Algirdas Taminskas

The court reporter—Daiva Pitrėnaitė

Rasa Juknevičienė, a member of the Seimas, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, the petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s public hearing, on 14 October 2015, considered constitutional justice case No. 2/2014 subsequent to the petition (No. 1B-38/2013) of a group of members of the Seimas, the petitioner, requesting an investigation into whether Paragraph 7 (wording of 2 July 2013) of Article 36 of the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service, insofar as it provides that professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, is in conflict with the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution of the Republic of Lithuania and with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof.

The Constitutional Court

has established:

I

The petition of the group of members of the Seimas, the petitioner, is substantiated by the following arguments.

1. Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law on the Organisation of the National Defence System and Military Service (hereinafter—also the Law) imposes a general prohibition precluding professional military servicemen from having another job (with the exception of educational or creative activities) or from engaging in a self-employed activity regardless of any other circumstances, inter alia, regardless of whether another job would create preconditions for a conflict between private interests and service interests, for using service in pursuit of self-interest, for engaging in an activity discrediting the national defence system or the authority of its officials, or for interfering with the proper performance of the duties of professional military servicemen.

2. While invoking the official constitutional doctrine, the petitioner notes that, under the Constitution, it is allowed to impose limitations on human rights and freedoms when the following conditions are met: the limitations are established by means of a law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons and the values consolidated in the Constitution, as well as constitutionally important objectives; the limitations do not deny the nature or essence of the rights or freedoms; and the constitutional principle of proportionality is observed. Even though, in state service relations, the public interest is overriding, however, consideration should be given to the fact that, from a social point of view, both the public interest and the rights of persons are constitutional values.

3. State service is a professional activity carried out by the employees of state or municipal institutions. The right to enter on equal terms the state service of the Republic of Lithuania, as consolidated in Paragraph 1 of Article 33 of the Constitution, is related to the right of everyone to freely choose a job or business that is established in Paragraph 1 of Article 48 of the Constitution. In this respect, the relations between the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof may be regarded as relations between lex specialis and lex generalis.

4. When imposing by means of a law limitations on the opportunity of state servants to have another job, consideration should be given to the fact that, under the Constitution, these limitations should be such so as to help avoid any conflict between public and private interests in state service, that these limitations should ensure that state service and the possibilities offered by it will be used in the public interest and will never be used in pursuit of self-interest so as not to obstruct state servants in the exercise of their duties and not to undermine the authority of state service or that of the appropriate state or municipal institutions so that no discredit would be brought upon state service or upon the said institutions.

5. Recommendation 1742 (2006) of the Parliamentary Assembly of the Council of Europe on human rights of members of the armed forces emphasised that that members of the armed forces are citizens in uniform who must enjoy the same fundamental freedoms, including those set out in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter (revised), and the same protection of their rights and dignity as any other citizen, within the limits imposed by the specific exigencies of military duties.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Juozas Olekas, the member of the Seimas acting as the representative of the Seimas, the party concerned, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

1. Persons who meet the general and special requirements for servicemen, as laid down in Article 28 of the Law, may enter professional military service on equal terms and on equal basis with others, by choosing this type of occupation freely, and may thus exercise the rights consolidated in Paragraph 1 of Article 33 and Paragraph 1 of Article 48 of the Constitution. Such persons undertake, on a voluntary basis, to perform military service under the conditions and in accordance with the procedure laid down in laws and other legal acts. This means the requirement both to comply with the legal regulation, established by the legislature by exercising its discretion, governing the organisation of actual military service and to accept certain limitations applicable to said service.

2. The function of national defence, where such a function gives priority to the protection of constitutional values, requires a separate institutional system. The legal prerequisites for the work of the said system must ensure that this function is carried out on a continuous basis. Consequently, military service as a system must also function on a continuous basis in order that the functions of national defence would be carried out efficiently and continuously by guaranteeing the public interest that is overriding in state service relations.

3. The integrity of the state service system does not exclude the possibility of regulating certain relations of state service in a differentiated manner. The Constitution consolidates a differentiated concept of civil state institutions and military state institutions. Thus, in order to ensure, in the public interest, national defence and the protection of constitutional values (the independence, territorial integrity, and constitutional order of the state), the legislature has the right to impose limitations or prohibitions on personal rights where such limitations or prohibitions are applicable only to servicemen.

4. The specific features of military service mean that this service and another job (business)—an activity unrelated to the said service—are incompatible in principle. Persons affirm their determination and commitment to perform military service not only by concluding a professional military service contract, but also by taking an oath that they will defend the State of Lithuania, its freedom and independence to the best of their abilities, even to the peril of their life, that they will conscientiously observe the Constitution and laws, and that they will obey the orders of their commanding officers. The serviceman, as a defender of the state, must be prepared at any time to carry out the tasks given to him/her: the serviceman must not only guard the territory of the state, conduct surveillance and defend its airspace and territorial sea, guard military facilities, but also, in the cases and under the conditions laid down in laws, must organise and coordinate search and rescue operations, deal with pollution incidents, provide assistance to other state institutions, constantly maintain combat readiness, as well as prepare for and participate in international operations. Such specific characteristics of service imply the application of the special regime of service and a limitation on the right of servicemen to leisure time.

By signing a professional military service contract, a serviceman pledges to perform military service as established in Paragraph 2 of Article 139 of the Constitution and serve as long as necessary, without limiting the duration of a service day and the total duration of a service week. The time of service performed by a serviceman is not limited and depends on tasks given to him/her. The time of performing daily duties is normally 40 hours a week or 8 hours a day, but, if necessary, a serviceman can be assigned 12- or 24-hour duties to be performed within a day, a combat duty not exceeding 7 days (a serviceman must be ready 24 hours a day to start performing tasks within established time), duties while confined to barracks (the right to leave barracks is limited), or similar duties. Soldiers performing daily duties additionally participate in exercises which last more than one day for 35 days per year on average; soldiers are also assigned 24-hour duties according to schedules prepared every month. In order to improve the skills of servicemen, they also undergo long-term training while often confined to barracks or in a location different from one where they perform daily duties.

By signing a professional military service contract, a serviceman also pledges to perform service that is not related to any particular locality. The transfer of servicemen to another place of service is determined by the needs of the national defence system (Articles 42 and 53 of the Law). At least every 3 years, officers are normally transferred to another position in rotation (Article 57). Other servicemen are also quite often transferred to another position or another place of service when this is needed in service interests, for their career, or for other purposes. Around 300 servicemen participate in international operations on a permanent basis. Due to such circumstances, it would be impossible for a certain part of servicemen to properly perform their obligations arising from employment legal relations. On the other hand, the obligations of a serviceman who also has another job may affect his/her mobility, discipline, or morale—a serviceman may be forced to look for a compromise between his/her service and another job, may try to avoid his/her transfer, exercises, participation in international operations, or his/her performance of duties other than daily ones.

Allowing servicemen to have another job would mean that, compared to servicemen whose schedule of service is determined by service interests, servicemen who perform their greater part of service in the form of carrying out daily duties and who are servicemen mostly serving in headquarters would enjoy a privilege. Such differentiation of servicemen would adversely affect their mutual trust and discipline. In addition, a legal situation where a person performing the duties of a serviceman is dependent on other persons as a result of concluding an employment contract with them would be deficient and incompatible with the overriding public interest in the sphere of military service, with the necessity to ensure the special relations of loyalty for the state, with the possibility for a serviceman to carry out in an independent manner the tasks given to him/her, and with military discipline and obedience.

5. The limitation on the right of persons to choose an economic activity is not absolute for professional military servicemen. No prohibition is imposed on any such economic activity that is related to property management, setting up a business, self-employment, or agricultural activity, but does not imply the commitment to comply with internal regulations adopted by a third party. The Law grants the right to professional military servicemen to set up, or to participate in setting up, joint-stock companies, closed-type joint-stock companies, agricultural companies, small partnerships, partnerships, single-person companies, to participate, within the limits defined in the Law, in the activities of the appointive or elective management bodies thereof, and imposes the duty to manage, use, and dispose of their ownership so as not to create a conflict between public and private interests, not to create any preconditions for using service in pursuit of self-interest, not to bring discredit upon service, and not to preclude professional military servicemen from performing their duties in a proper manner. Professional military servicemen are allowed to engage in educational or creative activities under the conditions and in accordance with the procedure laid down by law.

III

In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Daiva Beliackienė, Director of the Administration Department of the Ministry of National Defence of the Republic of Lithuania, who performs the functions of the Chancellor of the same ministry, and from Osvaldas Šarmavičius, Director of the Civil Service Department.

IV

1. At the hearing of the Constitutional Court, Seimas member Rasa Juknevičienė, the representative of the group of members of the Seimas, the petitioner, virtually reiterated the arguments set out in the petition and answered the questions put by the justices of the Constitutional Court.

The representative of the petitioner also gave an overview of practical problems related to the limitation on the right of professional military servicemen to have another job or to engage in a self-employed activity. She, among other things, explained that the legal regulation that consolidated the opportunity for professional military servicemen to have another job was adopted while taking account of the legal position set out in the Constitutional Court’s ruling of 27 February 2012, however, the said opportunity was repealed by the impugned legal regulation. In the same ruling, the Constitutional Court declared unconstitutional the prohibition precluding customs officials from having another job without taking account of any circumstances, therefore, according to the representative of the petitioner, when deciding on the constitutionality of the prohibition precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity, as consolidated in Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law, consideration should be given, inter alia, to the legal position of the Constitutional Court set out in the aforesaid ruling.

2. At hearing of the Constitutional Court, the specialist—Judita Nagienė, Director of the Law Department of the Ministry of National Defence of the Republic of Lithuania—took the floor and answered the questions put to her.

The Constitutional Court

holds that:

I

1. The group of members of the Seimas, the petitioner, requests an investigation into whether Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law on the Organisation of the National Defence System and Military Service, insofar as it provides that professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, is in conflict with the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof.

2. On 20 November 1990, the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania’s Law on National Defence Service, in which the main principles of organising national defence service were consolidated. The said law expired once the new Republic of Lithuania’s Law on National Defence Service, adopted by the Seimas on 25 September 1996, came into force on 18 October 1996, which established the basic principles of the organisation, management, and control of the national defence system, the procedure for performing military service, and the provision of servicemen. The same law consolidated the notion of professional military service for the first time. Under Paragraph 6 of Article 2 of this law, “professional military service” means continuous military service to perform which citizens of the Republic of Lithuania have voluntarily committed themselves under a military service contract.

3. Article 36 “Limitations on Servicemen of Professional Military Service” of the Law on National Defence Service prescribed that professional military servicemen may not: work in other enterprises, establishments or organisations, act as members of their management bodies (unless laws provide otherwise), hold another elective or appointive position, receive other remuneration, with the exception of remuneration for creative or educational activities; own a single-person company, act as general partners or limited partners in partnerships, acquire or control by proxy more than 10 percent of stocks of any single enterprise; represent the interests of the enterprises, establishments, or organisations of either this country or foreign countries and travel abroad at the invitation of such enterprises, establishments, or organisations; participate in a strike; use service property for personal needs; use service time and the opportunities provided by service for other than service purposes; and receive presents for the performance of service duties, unless this is provided for by international protocol.

4. On 5 May 1998, the Seimas adopted the Law on the Organisation of the National Defence System and Military Service, which came into force on 27 May 1998 and declared as no longer valid the Law on National Defence Service that was adopted on 25 September 1996.

Paragraph 8 of Article 36 of the Law prescribed:

Professional military servicemen may not: work in enterprises, establishments or organisations outside the National Defence System, act as members of their management bodies (unless laws provide otherwise), hold another elective or appointive position, receive other remuneration, with the exception of remuneration for creative or educational activities; control by proxy more than 10 percent of stocks of any single enterprise; provide commercial services or represent the interests of the enterprises, establishments, or organisations outside the national defence system and travel abroad for these purposes; be a member of a trade union; participate in a strike; use service property and the opportunities provided by service for other than service purposes. A serviceman who owns a single-person company or company stocks must control, use, and dispose of the property in such a way that the possession of this property or the ties with the company would not give rise to a conflict between private and service-related interests.”

Thus, Paragraph 8 of Article 36 of the Law imposed a prohibition precluding professional military servicemen from having another job, with the exception of a job in the enterprises, establishments, or organisations of the national defence system, and from receiving other remuneration, with the exception of remuneration for creative or educational activities.

5. Paragraph 8 of Article 36 of the Law has been amended and/or supplemented on more than one occasion, however, the prohibition precluding professional military servicemen from having another job, with the exception of a job in the enterprises, establishments, or organisations of the national defence system, and from receiving other remuneration, with the exception of remuneration for creative or educational activities, has remained unchanged.

6. It should be mentioned that the Republic of Lithuania’s Law Amending and Supplementing Articles 2, 3, 10, 11, 16, 17, 18, 21, 22, 28, 29, 31, 32, 33, 34, 36, 38, 42, 44, 45, 50, 52, 53, 54, 55, 59, 62, 65, 66, 68, 69, and 73 of the Law on the Organisation of the National Defence System and Military Service, which was adopted on 18 May 2010, amended the numbering of the paragraphs of Article 36 (wording of 8 June 2006) of the Law: Paragraph 8 thereof became Paragraph 7.

7. The legal regulation which consolidated the prohibition precluding professional military servicemen from having another job, with the exception of a job in the enterprises, establishments, or organisations of the national defence system, and from receiving other remuneration, with the exception of remuneration for creative or educational activities, was in force until 1 January 2013, when the Republic of Lithuania’s Law Amending and Supplementing Articles 2, 9, 20, 36, 50, 55, 59, 60, 63, 64, 65, 68, 71, 72, 77, 772 of the Law on the Organisation of the National Defence System and Military Service, as well as Supplementing the Law with Article 651, which was adopted by the Seimas on 8 November 2012, came into force. The said law, inter alia, amended Paragraph 7 (wording of 18 May 2010) of Article 36 of the Law.

Paragraph 7 (wording of 8 November 2012) of Article 36 of the Law was set out as follows:

Professional military servicemen may not act as elective or appointive management members of enterprises, with the exception of the enterprises, establishments, or organisations of the national defence system where they are elected or appointed management members thereof under procedure laid down in legal acts, may not be members of a trade union, participate in a strike, use service time, service property and the opportunities provided by service for other than service purposes. Servicemen who are the owners of single-person companies, partners in small partnerships, general partners or limited partners in partnerships, or who own shares in a joint-stock company or a share in an agricultural company, must manage, use and dispose of this ownership in such a way so that the possession of such ownership or the ties with the company (enterprise) in which a serviceman holds ownership would not create a conflict between private and service-related interests, would not create any preconditions for using service in pursuit of self-interest, would not discredit the authority of service, and would not interfere with the proper performance of the duties of a professional military serviceman. Servicemen in professional military service of the national defence system who carry out operational activities and officers in professional military service must, in accordance with the procedure laid down in laws and other legal acts, declare their private interests.”

By the aforesaid law, which was adopted on 8 November 2012, Article 36 (wording of 23 June 2011) of the Law was supplemented with Paragraph 12 that was set out as follows:

During their spare time, upon permission by the Minister of National Defence or a person authorised by him/her, professional military servicemen have the right to work in enterprises, establishments, or organisations, regardless of their system of ownership, legal form, type, or nature of activities, to provide commercial services and to receive work remuneration or salary provided that this does not create preconditions for a conflict between public and private interests in service, for using service in pursuit of self-interest, for discrediting the authority of service, or for interfering with the proper performance of the duties of professional military servicemen. Requests for having another job or for supplying commercial services are considered and decisions are adopted or revoked thereon under procedure laid down by the Government or an institution authorised by it. A decision on allowing professional military servicemen to have another job or to provide commercial services is valid for the period of one year from the day when the decision was adopted. A decision on allowing professional military servicemen to have another job may be revoked by the person who has adopted it in cases where the circumstances specified in this Paragraph arise due to which such permission could not be granted.”

Thus, the prohibition precluding professional military servicemen from having another job or receiving any other remuneration was lifted after the legislature, on 1 January 2013, created the opportunity for professional military servicemen, upon the permission by the Minister of National Defence or a person authorised by him/her, to work, during their spare time, in enterprises, establishments, or organisations, regardless of their system of ownership, legal form, type, or nature of activities, and to provide commercial services.

9. By the Republic of Lithuania’s Law Amending Article 36 of the Law on the Organisation of the National Defence System and Military Service, which was adopted by the Seimas on 2 July 2013, Paragraphs 7 and 12 (wording of 8 November 2012 of Article 36) of the Law were amended. After the said amendment to the Law came into force on 16 July 2013, Article 36 “Restrictions on Military Service” thereof is set out as follows (Paragraph 7 (wording of 2 July 2013) of this article is impugned by the petitioner):

1. Servicemen on actual military service, with the exception of voluntary servicemen or other military servicemen in active reserve, and with the exception of servicemen in trained reserve, shall be prohibited from participating in political activities including:

1) membership in a political party or a political organisation;

2) active participation of the servicemen in the meetings or other public actions organised by political parties or political organisations and expressing political convictions or political demands or directly supporting a political party or a political organisation;

3) servicemen’s political statements, articles or speeches publicly voicing disagreement with the policy declared and implemented by a democratically elected government of the State (the Seimas, the President of the Republic, the Government) or publicly raising political demands to the government of the State.

2. A serviceman shall terminate his/her membership and activity in a political party or a political organisation upon commencing initial mandatory or professional military service for the duration of service.

3. Servicemen may participate in the activities of associations and other non-political alliances, also in other non-political activities aiming to foster moral, national, patriotic, and civic democratic values, provided that participation in such activities does not interfere with the performance of direct duties of servicemen.

4. When participating in the political activities defined in Paragraph 1 of this Article, reserve and retired servicemen, volunteer servicemen, other military servicemen in active reserve, as well as servicemen in trained reserve, shall not have the right, under any circumstances, to link these activities with their status as a serviceman, to make references to their military rank, or to wear a military uniform.

5. A serviceman may not hold the position of a state servant, with the exception of the case indicated in Paragraph 5 of Article 42 of this Law.

6. According to the position held by him/her, a professional military serviceman may not be linked by direct subordination with his/her spouse, close relative or a person related to him/her by marriage.

7. Professional military servicemen may not act as elective or appointive management members of enterprises, with the exception of the enterprises, establishments, or organisations of the national defence system where they are elected or appointed management members thereof under procedure laid down in legal acts, may not be members of a trade union, participate in a strike, use service time, service property and the opportunities provided by service for other than service purposes. Professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this Law. Servicemen who are the owners of single-person companies, partners in small partnerships, general partners or limited partners in partnerships, or who own shares in a joint-stock company or a share in an agricultural company, must manage, use and dispose of this ownership in such a way so that the possession of such ownership or the ties with the company (enterprise) in which a serviceman holds ownership would not create a conflict between private and service-related interests, would not create any preconditions for using service in pursuit of self-interest, would not discredit the authority of service, and would not interfere with the proper performance of the duties of a professional military serviceman. Servicemen in professional military service of the national defence system who gather criminal intelligence and officers in professional military service must, in accordance with the procedure laid down in laws and other legal acts, declare their private interests.

8. When adopting decisions, a serviceman must give priority to service-related interests and ensure the unbiased nature of the decisions. A professional military serviceman shall not have the right, either in person or through other persons, to take part in such commercial actions that are related to his/her service or could give rise to a conflict between private or service-related interests. A serviceman may not represent an institution of the national defence system:

1) when dealing with natural or legal persons wherefrom he/she or the persons indicated in Paragraph 7 of this Article receive any type of income;

2) when dealing with all types of enterprises wherein he/she or the persons indicated in Paragraph 7 of this Article hold over 10 percent of the authorised capital or shares.

9. A serviceman may not accept any gifts or services directly or indirectly related to the position held by him/her, with the exception of the official bonuses or gifts given by the national defence system or other state institutions, also the gifts or services in accordance with the international protocol or traditions which are normally linked with his/her position.

10. Professional military servicemen who in the national defence system hold the office of a military doctor or assistant thereof may, if necessary, be posted to work in other state or municipal health care establishments, with full service remuneration, under the conditions set out in a bilateral agreement between an institution of the national defence system and a health care establishment concluded under procedure established by the Minister of National Defence and the Minister of Health. The right to work at other health care establishments during the spare time of professional military servicemen shall be exercised under the terms and conditions and in accordance with the procedure laid down by the Minister of National Defence.

11. The citizens of the Republic of Lithuania who receive state pensions of other countries for service in military or equivalent bodies of those countries may not perform professional military service. The Minister of National Defence shall have the right, without having regard to the age of a person, to admit to professional military service for a period not exceeding five years or to enter on the trained military reserve list the citizens of the Republic of Lithuania who have served as professional servicemen in the military or equivalent bodies of the states that are members of the North Atlantic Treaty Organisation (NATO) and who receive a military pension from those countries.

12. During their spare time, professional military servicemen shall have the right to engage in creative activities, as well as to decide on a transfer of the copyright ownership of their intellectual creations. Upon permission by the Minister of National Defence or a person authorised by him/her, professional military servicemen shall also have the right to engage in educational activities, including educational activities under an employment contract, or to engage in creative activities under an employment contract, and to receive work remuneration or salary provided that this does not create preconditions for a conflict between public and private interests in service, for using service in pursuit of self-interest, for discrediting the authority of service, or for interfering with the proper performance of the duties of professional military servicemen. A decision on allowing a professional military serviceman to engage in educational activities, including educational activities under an employment contract, or to engage in creative activities under an employment contract is valid until the transfer of the serviceman to another position, but no longer than 3 years from the day when the decision was adopted. A decision on allowing professional military servicemen to engage in educational activities, including educational activities under an employment contract, or to engage in creative activities under an employment contract may be revoked by the person who has adopted it in cases where the circumstances specified in this Paragraph arise due to which such permission could not be granted. Requests for engaging in educational activities, including educational activities under an employment contract, or for engaging in creative activities under an employment contract shall be considered and decisions shall be adopted or revoked thereon under procedure laid down by the Minister of National Defence.”

10. Thus, the impugned provision of Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law imposes the prohibition precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity, except in cases provided for in this law.

11. In the context of the constitutional justice case at issue, the provisions of other laws are also of relevance.

11.1. Article 93 of the Labour Code of the Republic of Lithuania prescribes: “An employment contract shall be an agreement between an employee and an employer, whereby the employee undertakes to perform work of a certain profession, speciality, qualification or to perform specific duties in accordance with the work regulations established at the workplace, whereas the employer undertakes to provide the employee with the work specified in the contract, to pay him/her the agreed work remuneration and to ensure working conditions as set in labour laws, other normative legal acts, the collective agreement, and by agreement between the parties.”

Thus, under this legal regulation, employment relations are characterised, inter alia, by subordination of employees to employers that consists in the fact that an employee, while working under an employment contract, is controlled by the employer, and has the duty to observe the work regulations established at the workplace, inter alia, the requirements for working hours, the organisation of work, work discipline, and the manner of doing work.

11.2. Paragraph 7 (wording of 27 June 2013) of Article 2 of the Republic of Lithuania’s Law on Personal Income Tax prescribes:

“‘Self-employment’ shall mean any independent activity in pursuit whereof an individual seeks to generate income or have any other economic benefit over a continuous period:

1) independent commercial or industrial activities of any nature, with the exception of the sale and/or rent of property immovable by nature and transactions in financial instruments;

2) independent creative, scientific, or professional (including liberal professions) activities, and other similar independent activities;

3) independent sports activities;

4) independent performing activities.”

Thus, under the legal regulation consolidated in Paragraph 7 (wording of 27 June 2013) of Article 2 of the Law on Personal Income Tax, there may be various forms of self-employment, self-employment is of a continuous nature, a self-employed person acts with the purpose of generating income or having any other economic benefit. One of the features of self-employment is its independent character.

11.3. Having compared the content of the notion of work under an employment contract to that of the notion of self-employment from the aspect relevant in the constitutional justice case at issue, it is clear that the forms of these activities are similar in terms of both their continuous nature and the purpose of persons engaged in these activities (where the said purpose is to generate income), however, they are different in their character: employment relations are characterised by the subordination of an employee with regard to the employer, whereas self-employment is characterised by independence.

12. It has been mentioned that the impugned Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law imposes the prohibition precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity, except in cases provided for in this law.

These exceptions are specified in Paragraphs 10 (wording of 8 November 2012) and 12 (wording of 2 July 2013) of Article 36 of the Law:

during their spare time, professional military servicemen have the right to engage in creative activities, as well as to decide on a transfer of the copyright ownership of their intellectual creations;

upon permission by the Minister of National Defence or a person authorised by him/her, professional military servicemen have the right to engage in educational activities, including educational activities under an employment contract, or to engage in creative activities under an employment contract, and to receive work remuneration or salary provided that this does not create preconditions for a conflict between public and private interests in service, for using service in pursuit of self-interest, for discrediting the authority of service, or for interfering with the proper performance of the duties of professional military servicemen;

professional military servicemen who in the national defence system hold the office of a military doctor or assistant thereof have the right to work in other health care establishments under the conditions and in accordance with the procedure established by the Minister of National Defence.

Thus, the prohibition, imposed by the impugned Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law and precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity is not absolute: under the specified conditions, they have the right to engage in creative or educational activities; professional military servicemen who hold the office of a military doctor or assistant thereof have the right to work in other health care establishments.

Paragraph 12 (wording of 2 July 2013) of Article 36 of the Law prescribes, inter alia, that a decision on allowing a professional military serviceman to engage in educational activities, including educational activities under an employment contract, or to engage in creative activities under an employment contract is valid until the transfer of the serviceman to another position, but no longer than 3 years from the day when the decision was adopted.

13. In the context of the constitutional justice case at issue, it should be noted that the legal regulation whereby the opportunity was consolidated for professional military servicemen, upon the permission by the Minister of National Defence or a person authorised by him/her, to work, during their spare time, in enterprises, establishments, or organisations, regardless of their system of ownership, legal form, type, or nature of activities, to provide commercial services, inter alia, to work in enterprises, establishments, or organisations outside the national defence system under an employment contract, or to engage in a self-employed activity, was valid from 1 January 2013 until 16 July 2013. With the exception of this period, the legislature, since 25 September 1996, has consistently taken the approach that professional military servicemen do not have the right to work in enterprises, establishments, or organisations outside the national defence system under an employment contract, or to engage in a self-employed activity.

14. It should be noted that it is clear from the travaux préparatoires of the Law Amending Article 36 of the Law on the Organisation of the National Defence System and Military Service, which was adopted on 2 July 2013, that, in the course of amending Article 36 (wording of 8 November 2012) of the Law, the legislature took into consideration the particularities of the status of professional military servicemen—the specific characteristics of service, the complexity of carried out functions, the specific characteristics of the time of performing daily duties, and the responsibility related to the held position—and sought to ensure national defence and the protection of constitutional values.

Thus, in the context of the constitutional justice case at issue, it is important to reveal the concept of professional military service that is consolidated in the law and the status of a serviceman performing this service.

15. Paragraph 14 (wording of 23 June 2011) of Article 2 “Definitions” of the Law provides that “serviceman” means a citizen of the Republic of Lithuania performing actual military service.

Under Paragraph 30 (wording of 8 November 2012) of the same article, “actual military service” includes mandatory military service done by citizens of the Republic of Lithuania, professional military service, and service by cadets.

Paragraph 26 (wording of 23 June 2011) of the same article prescribes: “‘Professional military service’ shall mean a continuous military service to perform which a citizen of the Republic of Lithuania has voluntarily committed himself/herself under a professional military service contract and which is performed in the Army or at other institutions of the national defence system under the conditions and in accordance with the procedure laid down in legal acts, also, in the cases specified by this Law, at other state, foreign state, or international institutions.”

Thus, professional military service is one of the types of actual military service.

16. In this context, it should be noted that, under Paragraph 1 (wording of 22 May 2008) of Article 12 “Tasks of the Army” of the Law, the principal tasks of the army in peacetime are as follows: 1) to guard the territory of the state (including surveillance, control, and defence of the airspace and the territorial sea) and military facilities, also to conduct surveillance of and control the exclusive economic zone and a continental shelf in cooperation with other state institutions; 2) to maintain combat readiness, to prepare for international operations and participate therein; 3) in the cases and under the conditions laid down in laws, to organise, coordinate, be in charge of, and carry out search and rescue operations, to deal with pollution incidents, as well as to provide assistance to other state and municipal institutions. Under Paragraph 2 (wording of 11 November 2004) of the same article, the principal task of the army in the event of an armed defence against an aggression (in wartime) is to organise, independently and in conjunction with the armed forces of the allies, the armed defence of the State of Lithuania and other allies.

17. Article 21 (wording of 23 June 2011) of the Law consolidates the general status of a serviceman. This article prescribes:

1. A serviceman shall be a defender of the State of Lithuania.

2. A serviceman’s service shall require a special relationship of loyalty to the State, which shall be regulated by laws and other legal acts. […]”

Under Article 23 (wording of 23 June 2011) of the Law, every individual, upon commencing actual military service, swears allegiance to the State of Lithuania.

Article 28 “Admission to Professional Military Service” (wording of 23 April 2015) of the Law prescribes:

1. The full-aged citizens of the Republic of Lithuania who are fit for professional military service according to their level of education, physical training, health condition and moral characteristics and, according to their age, are fit to hold a serviceman’s position corresponding to a military rank currently held or to be conferred, or the position of a military specialist (who has a higher or secondary education and is needed by the Army) shall be admitted to professional military service on the basis of the volunteering and selection principles. They shall be subject to the requirements as laid down in legal acts to have the knowledge of the state language.

2. The persons indicated in Paragraph 1 of this Article shall be admitted to professional military service by signing a contract on professional military service. […]

[…]

4. The following persons may not be professional military servicemen:

1) the persons who have served a custodial sentence and those with a previous criminal record, as long as the criminal record has not been expunged or the period of the suspension of the enforcement of a sentence has not ended;

2) the persons whose legal capacity has been limited by a court;

3) the persons who may not be recruited as a state servant under the law;

4) the persons who, under the law, may not be granted the right to access the classified information required for performing a serviceman’s duties and using it;

5) the persons who, within the last 5 years, have been removed from the office of a state politician, dismissed from professional military service or state service, or expelled from a military training establishment for the reasons relating to a breach of the oath.”

18. Under Paragraph 1 (wording of 23 June 2011) of Article 31 of the Law, a contract on professional military service is a written agreement between the Ministry of National Defence and a citizen of the Republic of Lithuania whereunder the Ministry of National Defence admits the citizen to professional military service, and the citizen undertakes, on a voluntary basis, to perform it under the conditions of and in accordance with the procedure laid down in laws and other legal acts and to perform all duties of a serviceman.

19. In the context of the constitutional justice case at issue, Paragraph 4 (wording of 9 May 2000) of Article 21 of the Law should also be mentioned. The said paragraph prescribes: “The duration of a service day and the total duration of a service week for a serviceman shall not be limited and shall depend on the needs of service. Detailed requirements for a service day, a day- and week-long rest provided to a serviceman and ensuring recovery of his/her health and working capacity shall be stipulated by statutes and other legal acts regulating the national defence system.”

20. To summarise the said provisions of the Law that are related to the status of professional military servicemen, it should be noted that the status of a professional military serviceman—a defender of the state who is linked by a special relationship of loyalty to the state and has sworn allegiance to the state—has specific particularities; these particularities of the status of professional military servicemen are also determined by the principal tasks of the army, which are, inter alia, to guard the territory of the state (including surveillance, control and defence of the airspace and the territorial sea), to maintain combat readiness, to prepare for and participate in international operations, as well as, in the cases specified by law, to organise and coordinate search and rescue operations and operations for dealing with pollution incidents; when performing these military tasks, professional military servicemen are voluntarily committed under a written contract to perform a continuous military service in the army or at other institutions of the national defence system, also, in the cases specified by the Law, at other state, foreign state, or international institutions; persons seeking to become professional military servicemen are subject to certain specific requirements for service in this system; such requirements are related to age, education, physical training, moral characteristics, and the knowledge of the state language; special prohibitions are also imposed on professional military servicemen; the particularities of the status of a professional military serviceman also determine a special character of his/her service, inter alia, the fact that the duration of a service day and the total duration of a service week for a serviceman are not limited and that a day- and week-long rest is provided to a serviceman where such rest ensures the recovery of his/her health and working capacity required for fulfilling the main function of a serviceman—ensuring the protection of the state.

II

1. In the constitutional justice case at issue, the petitioner impugns the compliance of the provision of the Law that regulates the right of professional military servicemen to have another job with the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof.

2. The Constitutional Court has noted that the provision of Paragraph 1 of Article 48 of the Constitution, whereby everyone may freely choose a job or business, is a norm of general scope (the Constitutional Court’s rulings of 4 March 1999 and 13 December 2004); the said norm means the opportunity of everyone to choose, at their discretion, i.e. deciding freely on this matter, a certain type of an occupation (the Constitutional Court’s rulings of 10 July 1996 and 13 December 2004); a person who seeks to implement his/her constitutional right to work, has the right to decide freely whether to choose a job in the private sector or a private business, or to seek to be employed in state service (the Constitutional Court’s rulings of 13 December 2004 and 13 August 2007).

3. The Constitutional Court has held that the relations between the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof may be regarded as relations between lex specialis and lex generalis (the Constitutional Court’s rulings of 13 December 2004 and 13 August 2007); the constitutional right of citizens to enter on equal terms the state service of the Republic of Lithuania is a version of the constitutional right of every person to choose a job (the Constitutional Court’s rulings of 13 December 2004, 13 August 2007, 7 July 2011, and 27 February 2012).

4. As noted by the Constitutional Court on more than one occasion, the provision of Paragraph 1 of Article 33 of the Constitution that consolidates the right of citizens to enter on equal terms the state service of the Republic of Lithuania should not be understood only as the right to enter state service, i.e. only as one related to the admission of a person to state service; the relations of state service comprise not only the relations linked to the implementation of the right of citizens to enter on equal terms the state service of the Republic of Lithuania, but also the relations that arise after they enter state service and when they perform their duties in state service (the Constitutional Court’s rulings of 13 December 2004, 13 August 2007, 7 July 2011, and 27 February 2012).

5. In its ruling of 13 December 2004, while referring, inter alia, to Paragraph 1 of Article 33 of the Constitution, the Constitutional Court interpreted the constitutional concept of state service and limitations on the opportunity of state servants to have another job, and, taking into consideration the provision of Paragraph 1 of Article 48 of the Constitution, whereby everyone may freely choose a job or business, formulated the provisions of the official constitutional doctrine that are important for the constitutional justice case at issue:

state service is a professional activity of state servants; the said activity is related to the guaranteeing of the public interest; the fact that the purpose of state service is to guarantee, when state and municipal institutions are in charge of public administration and provide public services, the public interest rather than private interests of the employees engaged in this activity, determines a special procedure of forming the corps of state servants, the specifics of their legal status, and their special responsibility to the public for performing the functions commissioned to them;

in state service, the public interest must prevail over private interests; in state service, conflicts between public and private interests must be avoided and no conditions for the emergence of such conflicts should be created; the opportunities provided by state service must not be used for private benefit;

the legislature enjoys the right to lay down certain requirements limiting the activity of state servants that is not related to state service, i.e. to impose limitations on the possibility of state servants to have another job (to do business), or on their political or social activities;

when imposing limitations on the opportunity of state servants to have another job, consideration should be given to the fact that, under the Constitution, these limitations should be such so as to help avoid any conflict between public and private interests in state service, that these limitations should ensure that state service and the possibilities offered by it will be used in the public interest and will never be used in pursuit of self-interest so as not to obstruct state servants in the exercise of their duties and not to undermine the authority of state service or the appropriate state or municipal institutions so that no discredit would be brought upon state service or upon the said institutions;

the constitutional concept of state service, the constitutional mission of state service, the fact that, by its very characteristics, the activity of state service is a professional activity, imply that, while paying heed, inter alia, to the constitutional principle of proportionality, the law should impose such limitations on another job of state servants where the said limitations would prevent them from working in those enterprises, establishments, or organisations, in which they enjoy the powers of management, or they control or supervise the activity of, or adopt any other decisions related to, such enterprises, establishments, or organisations (or participate in drafting and carrying out those decisions, coordinating and/or controlling the execution thereof, etc.);

a regulation governing the right of state servants to have another job and receive other remuneration would be in compliance with the Constitution where such a regulation would make it possible to decide in each particular case whether to permit a state servant to have another job, by assessing in a mandatory manner whether such permission would create preconditions for creating a conflict between public and private interests in state service, for using state service in pursuit of self-interest, for engaging in an activity discrediting state service, for interfering with the proper performance of the duties of a person holding an office in state service, whether a state servant would work in the enterprises, establishments, or organisations in which he/she enjoys the powers of management, or controls and supervises their activities, or adopts any other decisions related to such enterprises, establishments or organisations, as well as whether there are any other circumstances due to which state servants cannot have another job and receive other remuneration; the legislature should also provide for the subjects that would decide whether to permit a state servant to have another job and receive other remuneration as well as for the liability of such subjects for unlawful decisions adopted by them.

6. The Constitution mentions expressis verbis state service not only in its Paragraph 1 of Article 33, but also in Article 141 thereof, which provides that persons performing actual military service or alternative service, as well as the officers of the national defence system, the police, and the interior, non-commissioned officers, re-enlistees, and other paid officials of paramilitary and security services who are not retired to the reserve, may not be members of the Seimas or members of municipal councils, nor may they hold any elective or appointive office in civil state service, or participate in the activities of political parties or political organisations.

The Constitutional Court has held that some functions of the state are fulfilled, primarily or mainly, through civil state (and municipal) institutions, whereas others are performed through military and/or paramilitary state institutions (the Constitutional Court’s rulings of 24 September 2009 and 27 February 2012). The content of each state function and the circumstances of performing such functions lead to the situation that state institutions performing these functions differ in terms of their status and the character of their activity (the Constitutional Court’s rulings of 13 December 2004 and 27 February 2012). Under the Constitution, military, paramilitary, or security service is regarded as separate from civil service; the Constitution consolidates a differentiated concept of civil state institutions and military state institutions; the said concept creates legal preconditions for establishing, by means of legal acts, a differentiated regulation of relations connected with the activities of civil state institutions and military and paramilitary state institutions, as well as for establishing such a legal status of persons working in civil, military, and paramilitary state institutions that is distinguished by certain particularities (the Constitutional Court’s rulings of 24 December 2002, 13 December 2004, 24 September 2009, and 27 February 2012). The paramilitary services pointed out in Article 141 of the Constitution may not be equated with military institutions of the national defence system, and the officials of paramilitary services may not be equated with the servicemen of the national defence system; the notion “paramilitary services” of Article 141 of the Constitution should be interpreted as including the statutory state institutions (i.e. the police authorities, the bodies of interior service and security service as well as the other state institutions the activity of which, with respect to their mission and functions, should be organised on the basis of statutory relations) that do not belong to the national defence system; Article 141 of the Constitution does not give an exhaustive list of paramilitary (statutory) state institutions, therefore, in regulating the relations of state service, the legislature may also provide not only for the police authorities, the bodies of interior service and security service (inter alia, customs authorities), but also for other state institutions the activity of which, with respect to their mission and functions, should be organised on the basis of statutory relations (the Constitutional Court’s ruling of 27 February 2012).

7. The Constitutional Court has also noted that the independence, territorial integrity, and constitutional order of the state are among the constitutional values of the utmost importance, whose protection is a priority obligation of all the citizens of the state and its authorities; therefore, fulfilling the function of the protection of the state, which embraces the protection of constitutional values (as priority values), requires a separate institutional system that consists of military and paramilitary state institutions. Service in this system constitutes one of the forms of the constitutional institute of state service, as service to the State of Lithuania and its civil Nation; this form of the constitutional institute of state service also includes military service, which directly ensures the performance of the function of the protection of the state. Therefore, service in paramilitary and military institutions is subject to the basic constitutional requirements applicable to state service (the Constitutional Court’s ruling of 24 September 2009).

In the context of the constitutional justice case at issue, it needs to be emphasised that, in regulating limitations on the activity of professional military servicemen, the constitutional requirements, specified in the Constitutional Court’s ruling of 13 December 2004, for the legal regulation governing the right of state servants to have another job must be complied with. These limitations stemming from Paragraph 1 of Article 33 of the Constitution must be such that a conflict between public and private interests would be avoided in professional military service, that this service would not be used in pursuit of self-interest, that professional military servicemen would not be precluded from performing their duties, that the authority of professional military service would not be undermined, that no discredit would be brought upon service, and that professional military servicemen would not work in those enterprises, establishments, or organisations, in which they enjoy the powers of management, or they control or supervise the activity of, or adopt any other decisions related to, such enterprises, establishments, or organisations.

8. In its ruling of 24 September 2009, when disclosing the constitutional concept of military service, the Constitutional Court held that military service is intended for carrying out the defensive functions of the state, therefore, it is a certain type of state service, however, in view of the constitutional importance of the function of military service, it is separated from civil service; military service guarantees the protection of the constitutional values of the utmost importance—the independence, territorial integrity, and constitutional order of the state—and the defence of the state against a foreign armed attack; the subjects of military service enjoy a specific legal status, however, they are subject to special requirements and prohibitions; inter alia, Article 141 of the Constitution prohibits the said subjects from being members of the Seimas or members of municipal councils and from holding an elective or appointive office in civil state service; the legal regulation governing military service, which is one of the grounds of the national defence system, is the constitutional prerogative of the legislature consolidated in Paragraph 3 of Article 139 of the Constitution.

9. Paragraph 3 of Article 139 of the Constitution provides that the organisation of national defence shall be established by law. Interpreting this provision of the Constitution, in its ruling of 24 September 2009, the Constitutional Court formulated the following provisions of the official constitutional doctrine that are significant to the case at issue and are related to the discretion of the legislature to regulate the organisation of the national defence system, inter alia, the organisation of military service:

the Constitution commissions the legislature to establish the organisation of national defence system; thus, the Constitution consolidates the prerogative of the legislature to establish, while heeding the norms and principles of the Constitution, the regulation governing the national defence system, inter alia, the regulation governing military service;

in implementing its discretion, consolidated in Paragraph 3 of Article 139 of the Constitution, to regulate the organisation of the national defence system, the legislature must heed the norms and principles of the Constitution—the legislature must establish by means of laws such a regulation of the organisation of the national defence system, inter alia, that of the organisation of military service, which would ensure the protection of the constitutional values of the utmost importance—the independence, territorial integrity, and constitutional order of the state—and the adequate defence of the state against a foreign armed attack;

the duty stems from the Constitution, inter alia, from the provisions of Articles 3, 139, 141, and 142 thereof, for the legislature to establish such a legal regulation, according to which the Republic of Lithuania must have a regular and well-organised army capable of performing its constitutional functions, inter alia, its obligation to defend the state against a foreign armed attack; in regulating the relations in connection with the organisation of national defence, inter alia, the organisation of the armed forces, the legislature has a rather broad discretion; heeding the norms and principles of the Constitution, the legislature may choose various models of the armed forces and the forms of military service; the Constitution does not prohibit establishing such a legal regulation under which the Lithuanian armed forces whose mission is to protect and defend the state and its citizens from an armed attack would be organised on the grounds of professional and voluntary military service;

in regulating the relations of the national defence system, inter alia, the relations of military service, the legislature must heed the constitutional provisions and principles that give rise to the obligation to ensure proper national defence; an appropriate legal regulation must be established by taking account of the geopolitical situation and other factors that influence state security; the legislature must assess possible threats for state security, long-term political processes, the participation of the state in the organisations of mutual assistance of states, the international obligations of the state in security missions, peacekeeping missions, etc.;

only such a legal regulation governing the national defence system, inter alia, a legal regulation governing military service, would not be in conflict with the Constitution where the said legal regulation would be established by taking account of possible threats for state security and would ensure the defence of the state against a foreign armed attack, inter alia, would ensure the adequate training of citizens for the defence of the state against a foreign armed attack;

the Republic of Lithuania, while seeking to protect the values which are expressis verbis consolidated in the Constitution—the independence, territorial inviolability, and constitutional order of the state—must organise the national defence system, inter alia, military service, so that the state would have well-prepared, regular military units which would be ready to react rapidly to threats for state security and would be formed on the basis of military service; these may be armed forces formed on the basis of both voluntary military service and obligatory military service, or on the basis of professional military service (or on the basis of several said types of military service) where such armed forces would be able to carry out the functions of state defence; under the Constitution, inter alia, Paragraph 2 of Article 139 thereof, a concrete model of the armed forces must be established by the legislature;

no matter how actual military service is organised, the legislature must establish the legal regulation to the effect that the constitutional mission of such service—ensuring the preparedness to defend and the defence of the state against a foreign armed attack—would not be denied.

10. In the context of the constitutional justice case at issue, it should be noted that the Constitution gives rise to the mission of military service, inter alia, that of professional military service, to ensure the preparedness to defend the state against a foreign armed attack and to ensure the defence of the state. This mission implies certain specific particularities characteristic of this service, as, for instance: the necessity to constantly maintain combat readiness and the respective special regime governing the performance of service (inter alia, the particularities related to the period of military service, also to the uninterrupted continuity and mobility of military service; the relations of strict hierarchical subordination among servicemen; the system of military ranks; the specificity of disciplinary responsibility); the special legal status of servicemen, which includes certain specific powers (related, inter alia, to the use of military force), the specific requirements that apply to servicemen performing this service (inter alia, requirements related to their loyalty to the State of Lithuania, their age, state of health, education, physical fitness, moral character, etc.), certain limitations and prohibitions, as well as special social and other guarantees; and a special legal regulation established by means of the legal acts (statutes) providing for the procedure and conditions applicable to the performance of military service.

11. In this context, it should be noted that, under Article 141 of the Constitution, persons performing actual military service or alternative service, as well as the officers, non-commissioned officers, re-enlistees of the national defence system who are not retired to the reserve may not be members of the Seimas or members of municipal councils, nor may they hold any elective or appointive office in civil state service, or participate in the activities of political parties or political organisations.

Thus, Article 141 of the Constitution imposes expressis verbis certain special limitations on the activity of servicemen; such limitations aim to ensure the depoliticisation of military state institutions and reflects the constitutional principle of civil democratic control over military state institutions.

As mentioned before, in regulating limitations on the activity of professional military servicemen, the requirements, stemming from Paragraph 1 of Article 33 of the Constitution, for the legal regulation governing the right of state servants to have another job must be complied with.

It has also been mentioned that, in implementing its discretion, consolidated in Paragraph 3 of Article 139 of the Constitution, to regulate the organisation of the national defence system, the legislature must establish by means of laws such a regulation of the organisation of the national defence system, inter alia, the organisation of military service, that would ensure the protection of the constitutional values of the utmost importance—the independence, territorial integrity, and constitutional order of the state—and the adequate defence of the state against a foreign armed attack; the Constitution gives rise to the duty of the legislature to establish such a legal regulation under which the Republic of Lithuania would have a regular and well-organised army, capable of performing the constitutional functions of national defence; in regulating relations in connection with the national defence system, inter alia, military service, the legislature must take account of the geopolitical situation and other factors that have influence on national security; the legislature must also assess potential threats to national security, as well as long-term political processes, the participation of the state in the organisations of mutual assistance between states, and the international obligations of the state in security missions, peacekeeping missions, etc.

Thus, in the context of the constitutional justice case at issue, it should be held that, under the Constitution, when regulating relations in connection with the imposition of limitations on the activity of professional military servicemen, the legislature must pay heed to Article 141 of the Constitution, which imposes expressis verbis certain special limitations on the activity of servicemen, and to Paragraph 1 of Article 33 thereof, which gives rise to limitations on the work of professional military servicemen other than that specified in Article 141 of the Constitution. The constitutional mission of military service, the particularities of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security and related to the fulfilment of international obligations undertaken by the state, also imply the discretion of the legislature to establish other limitations on the activity of professional military servicemen.

III

In the context of the constitutional justice case at issue, mention should also be made of the international legal acts related to the right of individuals to freely choose a job and the right of citizens to enter on equal terms the state service of their country.

1. Paragraph 1 of Article 6 of the 1966 International Covenant on Economic, Social and Cultural Rights (this Covenant came into force for the Republic of Lithuania on 20 February 1992) provides that the States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his/her living by work which he/she freely chooses or accepts, and will take appropriate steps to safeguard this right.

When interpreting the provisions of Paragraph 1 of Article 6 of the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights has noted that the right to work includes the right of every human being to decide freely to accept or choose work, it encompasses all forms of work, however, it should not be understood as an absolute and unconditional right to obtain employment (the General Comment (18), 2005).

2. Article 25(c) of the 1966 International Covenant on Civil and Political Rights (this Covenant came into force for the Republic of Lithuania on 20 February 1992) ensures the right and opportunity for every citizen, without any distinctions and unreasonable restrictions, to have access, on general terms of equality, to public service in his/her country.

When interpreting this article, the UN Human Rights Committee held in the 1996 General Comment (25 (57)) that the opportunity of employment and pursuing a career in public service, the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable in order to ensure the implementation of the right of every citizen, without any distinctions and unreasonable restrictions, to have access, on general terms of equality, to public service in his/her country.

IV

On the compliance of Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law on the Organisation of the National Defence System and Military Service with the Constitution

1. As mentioned before, the group of members of the Seimas, the petitioner, requests an investigation into whether Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law on the Organisation of the National Defence System and Military Service, insofar as it provides that professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, is in conflict with the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof.

The doubts of the petitioner are virtually based on the fact that the limitations, imposed in Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law, on the opportunity of professional military servicemen to have another job or to be self-employed are not constitutionally well founded.

2. It has been mentioned that the impugned provision of Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law imposes the prohibition precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity, except in cases provided for in this law.

It has also been mentioned that the prohibition imposed by the impugned Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law and precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity is not absolute: under the specified conditions, they have the right to engage in creative or educational activities; professional military servicemen who hold the office of a military doctor or assistant thereof have the right to work in other health care establishments.

3. When deciding whether Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law, to the extent specified by the petitioner, is in conflict with the Constitution, it should be noted that, as mentioned before, since the Constitution consolidates a differentiated notion of civil state institutions and military and paramilitary state institutions, this creates legal preconditions for establishing, by means of legal acts, a differentiated regulation of relations connected with the activities of civil state institutions and military and paramilitary state institutions, as well as for establishing such a legal status of persons working in civil and military and paramilitary state institutions that is distinguished by certain particularities.

4. It has been mentioned that, in implementing its discretion, consolidated in Paragraph 3 of Article 139 of the Constitution, to regulate the organisation of the national defence system, the legislature must establish by means of laws such a regulation of the organisation of the national defence system, inter alia, the organisation of military service, that would ensure the protection of the constitutional values of the utmost importance—the independence, territorial integrity, and constitutional order of the state—and the adequate defence of the state against a foreign armed attack.

5. It has also been mentioned that the constitutional mission of military service to ensure the preparedness to defend the state against a foreign armed attack, as well as to ensure the defence of the state, implies certain specific particularities characteristic of this service, as, for instance: the necessity to constantly maintain combat readiness and the respective special regime governing the performance of service (inter alia, the particularities related to the period of military service, also to the uninterrupted continuity and mobility of military service; the relations of strict hierarchical subordination among servicemen; the system of military ranks; the specificity of disciplinary responsibility); the special legal status of servicemen, which includes certain specific powers (related, inter alia, to the use of military force), the specific requirements that apply to servicemen performing this service (inter alia, requirements related to their loyalty to the State of Lithuania, their age, state of health, education, physical fitness, moral character, etc.), as well as certain limitations and prohibitions.

6. It has been held in this ruling that, under the Constitution, when regulating relations in connection with the imposition of limitations on the activity of professional military servicemen, the legislature must pay heed to Article 141 of the Constitution, which imposes expressis verbis certain special limitations on the activity of servicemen, and to Paragraph 1 of Article 33 thereof, which gives rise to limitations on the work of professional military servicemen other than that specified in Article 141 of the Constitution. The constitutional mission of military service, the particularities of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security and related to the fulfilment of international obligations undertaken by the state, also imply the discretion of the legislature to establish other limitations on the activity of professional military servicemen.

7. It should be held that, in imposing the prohibition (in Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law) precluding professional military servicemen from working under an employment contract or from engaging in a self-employed activity, except in cases provided for in the Law, the legislature not only paid regard to the limitations on the activity of professional military servicemen, as consolidated expressis verbis in Article 141 of the Constitution and derived from Paragraph 1 of Article 33 thereof, but also properly implemented the right to establish, at its discretion, other limitations on the said activity, which are implied by the constitutional mission of military service, the exclusivity of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security and to the fulfilment of the international obligations undertaken by the state.

Thus, the prohibition precluding professional military servicemen from working under an employment contract or from engaging in a self-employed activity, except in cases provided for in the Law, should be assessed to be constitutionally well founded and justifiable; the said prohibition does not violate the human right to freely choose a job or business as consolidated in Paragraph 1 of Article 48 of the Constitution, or the right of citizens to enter on equal terms the state service of the Republic of Lithuania as consolidated in Paragraph 1 of Article 33 of the Constitution.

8. At the same time, it needs to be emphasised that the legislature, in implementing its discretion to establish other limitations on the activity of professional military servicemen, inter alia, the prohibition on work under an employment contract or on self-employment, must establish such a legal regulation governing the work remuneration of professional military servicemen that would ensure the possibility for these servicemen to perform their constitutional obligation fully and with dignity.

9. In this context, attention should be drawn to the fact that, as mentioned before, work under an employment contract and self-employment constitute activity forms that are similar in terms of both their continuous nature and the purpose of persons engaged in these activities (where the said purpose is to generate income), but differ in their character: employment relations are characterised by the subordination of an employee with regard to the employer, whereas self-employment is characterised by independence. Therefore, in implementing its discretion to establish limitations on the activity of professional military servicemen other than the limitations imposed expressis verbis in Article 141 of the Constitution and deriving from Paragraph 1 of Article 33 thereof, the legislature may take into account, among other things, the particularities of such types of activity.

10. It should be noted that, while claiming that the prohibition imposed in Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law and precluding professional military servicemen from having any other job under an employment contract or from engaging in a self-employed activity, except in cases provided for in this law, is in conflict with the Constitution, the petitioner refers to the legal position (ratio decidendi) of the Constitutional Court set out in the ruling of 27 February 2012: in the said ruling, the respective prohibitions precluding customs officials from having another job were declared, to a certain extent, unconstitutional.

It has been mentioned in this ruling that the notion “paramilitary services” of Article 141 of the Constitution should be interpreted as including those statutory state institutions (inter alia, customs authorities) that do not belong to the national defence system.

It has also been mentioned that the paramilitary services pointed out in Article 141 of the Constitution may not be equated with military institutions of the national defence system and that the officials of paramilitary services may not be equated with the servicemen of the national defence system.

Therefore, in the constitutional justice case at issue, the legal position (ratio decidendi) of the Constitutional Court (upon which its ruling 27 February 2012 is based), whereby, under the Constitution, it is not allowed to impose a general prohibition precluding customs officials from having any other job, may not be regarded as a precedent.

11. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law, insofar as it provides that professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, is not in conflict with the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and with the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof.

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

ruling:

To recognise that Paragraph 7 (wording of 2 July 2013; Official Gazette Valstybės žinios, 2013, No. 76-3856) of Article 36 of the Republic of Lithuania’s Law on the Organisation of the National Defence System and Military Service, insofar as it provides that professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, is not in conflict with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court:           Elvyra Baltutytė

                                                                                Vytautas Greičius

                                                                                Danutė Jočienė

                                                                                Pranas Kuconis

                                                                                Gediminas Mesonis

                                                                                Vytas Milius

                                                                                Egidijus Šileikis

                                                                                Algirdas Taminskas