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On the interpretation of the provisions of the Constitutional Court’s rulings of 12 July 2001 and 1 July 2004 related to the right of judges to have another job and to receive other remuneration

Case no 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01, 04/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE INTERPRETATION OF THE PROVISIONS OF THE RULINGS OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 12 JULY 2001 AND 1 JULY 2004

 

16 May 2016, no KT16-S9/2016

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, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 531 and 61 of the Republic of Lithuania’s Law on the Constitutional Court, at the Court’s hearing, on 28 April 2016, considered under written procedure the petition (no 1B-16/2015) of the Speaker of the Seimas of the Republic of Lithuania of 21 September 2015 requesting the interpretation of the provisions of the second paragraph of Item 6 of Section III of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 12 July 2001 and of the second paragraph of Item 13.6 of Section II of the reasoning part of the ruling of 1 July 2004.

The Constitutional Court

has established:

1. On 12 July 2001, in constitutional justice case no 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01, the Constitutional Court adopted the ruling on the compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the resolution of the Government of the Republic of Lithuania (No 499) on the temporary experimental procedure for the work pay of heads and other officials of state authority, state administration and law enforcement bodies of 29 November 1991, the resolution of the Government of the Republic of Lithuania (No 666) on the work pay of judges of courts, officials and other employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania of 24 June 1997, the resolution of the Government of the Republic of Lithuania (No 1494) on a partial amendment of the resolution of the Government of the Republic of Lithuania (No 689) on the work pay of chief officials and functionaries of law and order institutions and of law enforcement and control institutions of 30 June 1997 of 28 December 1999 with the Constitution of the Republic of Lithuania (Official Gazette Valstybės žinios, 2001, No 62-2276, corrigendum – Official Gazette Valstybės žinios, 2001, No 86; hereinafter referred to as the Constitutional Court’s ruling of 12 July 2001).

The Speaker of the Seimas, the petitioner, requests to interpret whether the provision “Judges may receive only the remuneration of a judge paid from the state budget and may not receive any other remuneration with the exception of payment for educational or creative activities” of the second paragraph of Item 6 of Section III of the reasoning part of the Constitutional Court’s ruling of 12 July 2001 means that due to the fact that a judge receive lump-sum payment or periodic payments for participating in support projects funded by the European Union, by other international organisations, or by foreign states, or for participating in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, from the funds of the European Union, international organisations or foreign states under the conditions and rates established in the agreements of support projects, as well as that due to the fact that a judge of a court is paid the remuneration in the capacity of a judge of an international court for holding the duties of a judge of an international court (in the cases where he/she combines the duties of a judge of a national court and those of a judge of an international court), Paragraph 1 of Article 113 of the Constitution of the Republic of Lithuania is violated.

2. On 1 July 2004, in constitutional justice case (no 04/04), the Constitutional Court adopted the ruling on the compliance of Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) with the Constitution of the Republic of Lithuania (Official Gazette Valstybės žinios, 2004, No 105-3894, hereinafter referred to as the Constitutional Court’s ruling of 1 July 2004).

The Speaker of the Seimas, the petitioner, requests an interpretation, whether the provision “The notion “work” used in the formula “work in business, commercial and other private establishments or enterprises” in Paragraph 1 of Article 60 of the Constitution in its turn comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking the office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-off (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered by any legal contract or other legal act, or performed without any legal contract or legal act” means that due to the fact that judges participate in support projects funded by the European Union, by other international organisations, or by foreign states, or in projects under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, provided that it does not interfere with the fulfilment of the duties of judges, as well as that due to the fact that a judge does not work full-time as a judge of an international court, Paragraph 1 of Article 113 of the Constitution of the Republic of Lithuania is violated.

The Constitutional Court

holds that:

I

1. The purpose of the institute of the interpretation of the rulings and other final acts of the Constitutional Court is to disclose the content and meaning of the relevant provisions of a ruling or another final act of the Constitutional Court more broadly and in more detail, if it is necessary, in order to ensure the proper execution of that ruling or another final act of the Constitutional Court so that the said ruling or another final act of the Constitutional Court would be followed (inter alia, the Constitutional Court’s decisions of 22 December 2010, 5 September 2011, 29 November 2012, and 14 January 2015).

2. The Constitutional Court has emphasised on more than one occasion that the consideration of a petition requesting the interpretation of a ruling or another final act of the Constitutional Court does not imply any new constitutional justice case.

Under Paragraph 3 of Article 61 (wordings of 3 February 1993, 11 July 1996, and 14 May 2015) of the Law on the Constitutional Court, the Constitutional Court must interpret its ruling without changing its contents. The Constitutional Court has held on more than one occasion that the said provision means, among other things, that, while interpreting its ruling, the Constitutional Court may not interpret the content of the ruling in such a way that would change the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, and the arguments and reasons upon which that ruling of the Constitutional Court is based. A ruling of the Constitutional Court is integral and all its constituent parts are interrelated; the operative (resolving) part of a ruling is based upon the arguments of the reasoning part; while interpreting its ruling, the Constitutional Court is bound by the content of both the operative part and reasoning part of its ruling.

When interpreting Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court has stated in its acts on more than one occasion that the Constitutional Court may not interpret what it did not investigate in the constitutional justice case in which the ruling, the interpretation of which is requested, was adopted; this would imply a matter for a separate investigation.

The Constitutional Court has also held more than once that, in the official interpretation of rulings and other final acts of the Constitutional Court, the official constitutional doctrine is not modified; the modification of the official constitutional doctrine should be related to the consideration of new constitutional justice cases and creation of new precedents therein by the Constitutional Court but not to the official interpretation of the provisions of the rulings or other final acts of the Constitutional Court (inter alia, Constitutional Court’s rulings of 6 December 2007, 1 February 2008, 18 December 2009, 13 March 2013, and 26 February 2014).

3. It should also be noted that the uniformity and continuity of the official constitutional doctrine imply the necessity to interpret each provision of a ruling or another final act of the Constitutional Court in the light of both the entire official constitutional doctrinal context and other (explicit or implicit) provisions of the Constitution that are related to the provision (provisions) of the Constitution in the course of the interpretation of which the relevant provision of the official constitutional doctrine was formulated in a certain ruling or another final act of the Constitutional Court. As the Constitutional Court has already held on more than one occasion, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set out in the relevant ruling or another final act of the Constitutional Court, or in other Constitutional Court’s acts, as well as with other provisions (explicit and implicit) of the Constitution (inter alia, the Constitutional Court’s decisions of 6 December 2007, 28 October 2009, 13 March 2013, and 14 January 2015).

II

It has been mentioned that the Speaker of the Seimas, the petitioner, requests an interpretation, whether the provision “The notion “work” used in the formula “work in business, commercial and other private establishments or enterprises” in Paragraph 1 of Article 60 of the Constitution in its turn comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking the office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-off (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered by any legal contract or other legal act, or performed without any legal contract or legal act” means that due to the fact that judges participate in support projects funded by the European Union, by other international organisations, or by foreign states, or in projects under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, provided that it does not interfere with the fulfilment of the duties of judges, as well as that due to the fact that a judge does not work full-time as a judge of an international court, Paragraph 1 of Article 113 of the Constitution is violated.

Thus, the petitioner requests an interpretation into whether the provision of the second paragraph of Item 13.6 of Section II of the reasoning part of the Constitutional Court’s ruling of 1 July 2004 means that the participation of a judge in support projects funded by the European Union, by other international organisations, or by foreign states, or in projects under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, provided that it does not interfere with the fulfilment of the duties of judges, as well as that due to the fact that a judge does not work full-time as a judge of an international court, is compatible with the duties of a judge of a national court.

It should be noted that the Constitutional Court is requested an interpretation of the provision of the second paragraph of Item 13.6 of Section II of the reasoning part of the Constitutional Court’s ruling of 1 July 2004 formulated by the Constitutional Court while interpreting Paragraph 1 of Article 60 of the Constitution (that establishes one of the limitations established for the members of the Seimas – the incompatibility of the duties of a member of the Seimas with other duties and work, save the exceptions that are expressis verbis established or implicitly provided for in the Constitution itself) and when deciding on the constitutionality of Paragraph 4 of Article 15 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998), insofar as it prescribes that payments made to a member of the Seimas for creative activities shall be considered payment for educational work.

Thus, in its ruling of 1 July 2004, the Constitutional Court did not investigate the question raised by the petitioner in relation with the incompatibility of the duties of a judge with any other elective or appointive office, or work in any business, commercial, or other private establishments or enterprises, which is consolidated in Paragraph 1 of Article 113 of the Constitution.

It has been mentioned that, as the Constitutional Court has held in its acts on more than one occasion, the Constitutional Court may not interpret what it did not investigate in the constitutional justice case in which the ruling, the interpretation of which is requested, was adopted; this would imply a matter for a separate investigation.

Taking account of the arguments set out, the Constitutional Court will not interpret the specified provision of the second paragraph of Item 13.6 of Section II of the reasoning part of the Constitutional Court’s ruling of 1 July 2004.

III

1. It has been mentioned that the Speaker of the Seimas, the petitioner, requests to interpret whether the provision “Judges may receive only the remuneration of a judge paid from the state budget and may not receive any other remuneration with the exception of payment for educational or creative activities” of the second paragraph of Item 6 of Section III of the reasoning part of the Constitutional Court’s ruling of 12 July 2001 means that due to the fact that a judge receive lump-sum payment or periodic payments for participating in support projects funded by the European Union, by other international organisations, or by foreign states, or for participating in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, from the funds of the European Union, international organisations or foreign states under the conditions and rates established in the agreements of support projects, as well as that due to the fact that a judge of a court is paid the remuneration in the capacity of a judge of an international court for holding the duties of a judge of an international court (in the cases where he/she combines the duties of a judge of a national court and those of a judge of an international court), Paragraph 1 of Article 113 of the Constitution is violated.

Thus, the petitioner seeks to clarify certain particularities of the constitutional status of judges – in particular, the prohibition for judges to receive other remuneration, with the exception of payment for educational or creative activities, from the following two aspects:

whether it includes the prohibition for judges to receive remuneration for participation in international cooperation and democracy promotion projects related to improving the system of justice and the activity of courts;

whether it includes the prohibition for judges to receive remuneration for acting in the capacity of a judge of an international court (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court).

2. It has been mentioned that no official constitutional doctrinal provision of a ruling of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set out in the relevant ruling of the Constitutional Court, the interpretation of the provision of which is requested, as well as that the provisions of the Constitutional Court’s ruling must be interpreted in the light of the entire official constitutional doctrinal context and of the other provisions (explicit and implicit) of the Constitution that are related to the provision of the Constitution in the course of the interpretation of which a relevant official constitutional doctrinal provision was formulated in the relevant Constitutional Court’s ruling.

Thus, the provision of the second paragraph of Item 6 of Section III of the reasoning part of the Constitutional Court’s ruling of 12 July 2001, whose interpretation in the specified aspect is requested by the petitioner, should be interpreted together with other provisions of that ruling, with the provisions of the official constitutional doctrine formulated in the Constitutional Court’s rulings which, inter alia, defined the constitutional grounds for the implementation of justice in Lithuania, the autonomy and independence of the judiciary from other state powers, and of the exclusive constitutional status of a judge, as well as together with other provisions of the Constitution.

3. Under Paragraph 1 of Article 5 of the Constitution, courts are one of the institutions exercising state power. The Constitutional Court has held that courts – jurisdictional institutions – exercise judicial power, which, as well as the legislative and executive branches of power, is a fully fledged branch of state power and one of the branches of state power consolidated in the Constitution (the Constitutional Court’s ruling of 28 March 2006). The constitutional purpose and competence of courts is administration of justice (the Constitutional Court’s ruling of 6 June 2006). The function of the administration of justice determines the independence of judges and courts: judges may administer justice only when they are independent. In the jurisprudence of the Constitutional Court, it has been held that the independence of judges and courts, as well as their impartiality, may be ensured by means of various measures, inter alia, by establishing by law their procedural independence, the organisational independence and self-government of courts, the status of judges, and social (material) guarantees of judges (the Constitutional Court’s rulings of 21 December 1999, 27 November 2006, and 22 October 2007 and its decision of 10 March 2014).

4. The function of the administration of justice also determines an exceptional constitutional status of judges, which is revealed in various constitutional provisions that consolidate the independence of judges and courts when administering justice (Paragraph 2 of Article 109 of the Constitution), the impossibility for a judge to hold any other elective or appointive office, to work in any business, commercial, or other private establishments or enterprises, to receive any remuneration other than the remuneration established for judges and payment for educational or creative activities, and to take part in the activities of political parties and other political organisations (Article 113), the prohibition on interfering with the activity of a judge and the inviolability of the person of a judge (Article 114), etc. (the Constitutional Court’s ruling of 22 October 2007).

5. The petitioner requests the interpretation of the provision of the Constitutional Court’s ruling of 12 July 2001 formulated while interpreting Paragraph 1 of Article 113 of the Constitution, which, as mentioned before, establishes that judges may not hold any other elective or appointive office, or work in any business, commercial, or other private establishments or enterprises; nor may they receive any remuneration other than the remuneration established for judges and payment for educational or creative activities.

In this context, mention should be made of the provisions of the official constitutional doctrine that reveal the constitutional concepts of educational and creative activities.

5.1. When interpreting the constitutional concept of creative activities, the Constitutional Court noted that Paragraph 1 of Article 42 of the Constitution provides that culture, science and research, and teaching are free; and Paragraph 3 of this article provides that the law protects and defends the spiritual and material interests of an author that are related to scientific, technical, cultural, and artistic work. According to the Constitution, creative activities are activities in the area of science, technology, culture or art, aimed at creating a certain result, i.e. qualitatively new, original, and specific material or spiritual values of science, technology, culture, or art, which have never existed before. Creative activities may be continuous, professional, and one-off (episodic). The concept of creative activities, which is consolidated in the Constitution, is integral and its content does not depend, inter alia, on persons who are engaged in them. Remuneration may be paid to an author for his/her creative activities. It is generally recognised that remuneration for creative activities is regulated by the norms of copyright (the Constitutional Court’s ruling of 1 July 2004 and its decision of 23 February 2011).

5.2. The Constitutional Court also noted that the constitutional concepts of educational and creative activities are not identical, and that each of them has its own independent content. These concepts may not be identified with one another, they are not synonyms, and none of them covers the other. Educational activities in the Constitution are separated from creative activities: educational activities are linked with education, teaching and training at educational and teaching establishments (including higher schools), whereas creative activities, as already mentioned before, are activities aimed at creating a piece of science, technology, culture, or art (the Constitutional Court’s ruling of 1 July 2004 and its resolution of 23 February 2011). Thus, creative activities include/encompass, inter alia, scientific activity.

5.3. It is worth noting that like creative activities, educational activities can also be permanent, professional, and one-off (episodic). The fact that the constitutional concept of educational activities is linked with education, teaching, and training at educational and teaching establishments (including higher schools) usually implies employment, service or other relationships with relevant establishments, as well as with holding office linked to educational activities and the right to receive remuneration for this activity. Conducting scientific activities may also imply employment, service or other relationships in relevant educational and scientific establishments, as well as the right to receive remuneration for this activity.

On the other hand, educational activity, which is linked to education, teaching, and training, as well as scientific activity, which can also be one-off (episodic), also imply that this activity does not necessarily have to be linked to specific employment, service or other relations with relevant establishments.

It should also be noted that although the constitutional concepts of educational and creative activities are not identical and each of them has its own independent content, in certain cases educational, creative, inter alia, scientific activities may be closely interrelated.

5.4. Thus, in the context of this decision, it is worth noting that the possibility of a judge to receive payment for educational or creative activities, in addition to other things, means that, under the Constitution, a judge may conduct educational and creative activities.

6. It has been mentioned that the petitioner seeks to elucidate, inter alia, whether the prohibition for judges to receive other remuneration, with the exception of payment for educational or creative activities, includes the prohibition for judges to receive remuneration for participation in international cooperation and democracy promotion projects related to improving the system of justice and the activity of courts.

6.1. In the context of this decision, mentioned should also be made of the provisions of the official constitutional doctrine that are related to the general constitutional grounds for international cooperation carried out by the State of Lithuania:

the general constitutional grounds for international cooperation carried out by the state are consolidated in various provisions of the Constitution, inter alia, in Paragraph 1 of Article 135 thereof; the said paragraph states that, in implementing its foreign policy, the Republic of Lithuania follows the universally recognised principles and norms of international law, seeks to ensure national security and independence, the welfare of its citizens, and their basic rights and freedoms, and contributes to the creation of the international order based on law and justice; the aforementioned constitutional grounds are also consolidated in Article 136 of the Constitution, whereby the Republic of Lithuania participates in international organisations provided that this is not in conflict with the interests and independence of the state (the Constitutional Court’s ruling of 15 March 2011); under Paragraph 3 of Article 138 of the Constitution, international treaties ratified by the Seimas of the Republic of Lithuania are a constituent part of the legal system of the Republic of Lithuania; respect for international law, i.e. the observance of international obligations undertaken of its own free will and respect for the universally recognised principles of international law (as well as the principle of pacta sunt servanda) are a legal tradition and a constitutional principle of the restored independent State of Lithuania (the Constitutional Court’s ruling of 14 March 2006);

respect for international law is an inseparable part of the constitutional principle of a state under the rule of law; the essence of the said principle is the rule of law (the Constitutional Court’s rulings of 24 January 2014 and 18 March 2014); respect for international law is also linked to the striving for an open, just, and harmonious civil society, which is expressed through the constitutional principle of a state under the rule of law and implies, inter alia, the openness for universal democratic values and integration into the international community founded on these values (the Constitutional Court’s ruling of 18 March 2014);

the general grounds (consolidated in the Constitution) for international cooperation carried out by the state are characterised, inter alia, by the consolidation of the geopolitical orientation of the State of Lithuania (the Constitutional Court’s ruling of 15 March 2011); the geopolitical orientation of the State of Lithuania means the membership of the Republic of Lithuania in the EU and NATO as well as the necessity to fulfil the relevant international obligations related to the said membership (the Constitutional Court’s rulings of 24 January 2014 and 19 November 2015); such geopolitical orientation of the State of Lithuania is based upon the recognised and protected universal constitutional values that are common with the values of other European and North American states (the Constitutional Court’s ruling of 24 January 2014); the fully fledged participation of the Republic of Lithuania, as a member of the European Union, in the European Union is a constitutional imperative grounded in the expression of the sovereign will of the Nation; the fully fledged membership of the Republic of Lithuania in the European Union is a constitutional value (the Constitutional Court’s ruling of 24 January 2014).

6.2. In the context of the questions raised by the petitioner, it should be noted that Paragraph 1 of Article 135 of the Constitution consolidates the grounds for international cooperation carried out by the Republic of Lithuania in order to implement the constitutional objectives of foreign policy to ensure national security and independence, the welfare of its citizens, and their fundamental rights and freedoms, and to contribute to the creation of the international order based on law and justice; when account is taken of the geopolitical orientation of the State of Lithuania, the aforementioned grounds for international cooperation imply such an activity performed by the State of Lithuania, by its institutions, and by individuals employed therein that is aimed at contributing to the partnership of other states with the European Union or with NATO, or at contributing to the integration of the said states into these international organisations by promoting the dissemination of universal and democratic values, as well as the principles of EU law, as, for instance, democracy, the rule of law, transparency, the independence of courts and judges, respect for human rights and fundamental freedoms, and, inter alia, the dissemination of the said values and principles in the spheres of the improvement of the systems of justice and the activity of courts.

It has been mentioned that courts are one of the institutions exercising state power; the judiciary may fulfil its constitutional obligation and function, which is the administration of justice, only being autonomous and independent of the other branches of power. In this context, it should be mentioned that the Constitutional Court has held that the autonomy and independence of judicial power does not mean that it and the other state powers – legislative power and executive power – may not cooperate, of course, without interfering into the exercise of the powers of other branches of power (the Constitutional Court’s ruling of 9 May 2006).

This, among other things, means that, under the Constitution, the role of courts is not limited exclusively to the administration of justice; as well as other institutions of state power, courts, within their constitutional competence, either independently or in cooperation with other state institutions, may participate in carrying out the general tasks and functions of the state; inter alia, courts may also participate in the activity of achieving the constitutional objectives of the foreign policy of the Republic of Lithuania and in the activity of fulfilling international obligations and those related to full membership in the European Union and NATO, including the participation in projects for international cooperation and democracy promotion. As mentioned before, this geopolitical orientation, which has been chosen by the Republic of Lithuania and is a constitutional value, also implies such an activity performed by the State of Lithuania, by its institutions, and by individuals employed therein that is aimed at contributing to the partnership of other states with the European Union or with NATO, or at contributing to the integration of the said states into these international organisations by promoting the dissemination of universal and democratic values, the principles of EU law, inter alia, the dissemination of such values and principles in the spheres of the improvement of the system of justice and the activity of courts.

Thus, it is possible to implement the participation of the State of Lithuania and its institutions, inter alia, courts, in the said activity, among other things, when judges take part in support projects funded by international organisations or foreign states, or in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts.

6.3. In the context of this decision, it also needs to be mentioned that the Constitutional Court has noted that the appropriate preparation of judges, the improvement of their knowledge and in-service training are an important precondition for ensuring proper activities of courts (the Constitutional Court’s ruling of 21 December 1999 and its decision of 10 March 2014). The qualification of judges, their professionalism, their ability to decide cases following not only the law but also law are among the factors determining public confidence in courts (the Constitutional Court’s ruling of 27 November 2006).

It should be noted that one of the preconditions for the effective improvement of the qualification of judges is an opportunity for judges holding higher qualification, with bigger work experience as a judge, and possessing specific knowledge related to a certain area of law, to share their knowledge and experience with other judges, inter alia, on the international level, as, for instance, when judges participate in projects for international cooperation and democracy promotion, thus contributing to the implementation of the aforesaid constitutional objectives of the foreign policy of the Republic of Lithuania, inter alia, to the fulfilment of the international obligations arising from the membership in the European Union and NATO, which include assistance to other states in the processes of their partnership with or integration into the European Union or NATO, as well as to the fulfilment of other international obligations undertaken by the State of Lithuania.

It has been mentioned that, under the Constitution, courts are allowed to participate in the activity of achieving the constitutional objectives of the foreign policy of the Republic of Lithuania and in the activity of fulfilling international obligations and those related to full membership in the European Union and NATO, including the participation in projects for international cooperation and democracy promotion. This means, among other things, that courts and judges may participate in an activity aimed at contributing to the improvement of the qualification of judges, inter alia, judges from other states, and at promoting the dissemination of universal and democratic values, as well as the principles of EU law, inter alia, the dissemination of the said values and principles in the spheres of the improvement of the systems of justice and the activity of courts.

6.4. It has also been mentioned that under Paragraph 1 of Article 113 of the Constitution, judges may not receive any remuneration other than the remuneration established for judges and payment for educational or creative activities. Thus, judges may receive payment for participating in the aforementioned international projects only if they are engaged in educational or creative activities while participating in the said projects.

At the same time, it needs to be noted that, as mentioned before, the constitutional mission of courts is to administer justice. Thus, any other activity of judges, inter alia, their participation in support projects funded by international organisations or foreign states, or in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, may not interfere with the discharge of the main constitutional judicial obligation, arising from the Constitution, inter alia, Article 109 thereof, to administer justice in a proper and effective manner. On the other hand, it should also be noted that judges may participate only in such activity that is in line with the impartiality and independence of judges.

7. As mentioned above, the petitioner requests an interpretation into, inter alia, whether the prohibition for judges to receive other remuneration, with the exception of payment for educational or creative activities, includes the prohibition for judges to receive remuneration for acting in the capacity of a judge of an international court (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court).

7.1. In the Constitutional Court’s ruling of 12 July 2001, the interpretation of the provision of which is requested, it was noted that the incompatibility of the office of a judge with another office or employment is determined by the special legal situation of both judges and the judiciary as one of the branches of state power; the established prohibition is aimed at ensuring the independence and impartiality of judges, which are necessary conditions for the implementation of justice.

It is clear from this provision that the prohibition imposed on judges on holding any other elective or appointive office, or working in any business, commercial, or other private establishments or enterprises is not an objective in itself – this prohibition is aimed at ensuring the independence and impartiality of judges and the proper administration of justice.

7.1.1. In this context, it should be noted that the question raised by the petitioner whether the prohibition preventing a judge from receiving any remuneration other than that established for judges and payment for educational or creative activities includes a prohibition preventing a judge from receiving remuneration for holding the duties of a judge of an international court (in the cases where the duties of a judge of a national court and those of a judge of an international court are combined) must be assessed in the context of the constitutional grounds of the international cooperation of the Republic of Lithuania, which are consolidated in various provisions of the Constitution, inter alia, in Paragraph 1 of Article 135 thereof, as well as in the context of the international obligations undertaken by the State of Lithuania of its own free will.

As mentioned before, in implementing its foreign policy, the Republic of Lithuania follows the universally recognised principles and norms of international law, seeks to ensure national security and independence, the welfare of its citizens, and their basic rights and freedoms, and contributes to the creation of the international order based on law and justice; the Republic of Lithuania participates in international organisations provided that this is not in conflict with the interests and independence of the State; respect for international law, i.e. the observance of international obligations undertaken of its own free will and respect for the universally recognised principles of international law (as well as the principle of pacta sunt servanda) are a legal tradition and a constitutional principle of the restored independent State of Lithuania.

7.1.2. It should also be noted that the general grounds, which are consolidated in the Constitution, for international cooperation carried out by the state are characterised, inter alia, by the establishment of the geopolitical orientation of the State of Lithuania – the membership of the Republic of Lithuania in the European Union and NATO and the necessity to fulfil the international obligations related to the said membership; the geopolitical orientation of the Republic of Lithuania is related to such an activity performed by the State of Lithuania, by its institutions, and by individuals employed therein that is aimed at contributing to the partnership of other states with the European Union or with NATO, or at contributing to the integration of the said states into these international organisations by promoting the dissemination of universal and democratic values, as well as the principles of EU law, as, for instance, democracy, the rule of law, the independence of courts and judges, respect for human rights and fundamental freedoms, inter alia, the dissemination of such values and principles in the spheres of the improvement of the system of justice and the activity of courts.

7.1.3. As mentioned before, one of the preconditions for the effective improvement of the qualification of judges is an opportunity for judges holding higher qualification, with bigger work experience as a judge, and possessing specific knowledge related to a certain area of law, to share their knowledge and experience with other judges, inter alia, on the international level, as, for instance, when judges participate in projects for international cooperation and democracy promotion, thus contributing to the implementation of the constitutional objectives of the foreign policy of the Republic of Lithuania and to the fulfilment of the international obligations arising from the membership in the European Union and NATO.

7.1.4. In the context of the petition, it should be noted that, as mentioned before, under the Constitution, the role of courts is not limited exclusively to the administration of justice – they are allowed to participate in the activity of achieving the constitutional objectives of the foreign policy of the Republic of Lithuania and in the activity of fulfilling international obligations and those related to full membership in international organisations, inter alia, in the European Union.

Thus, the fact that the Republic of Lithuania carries out international cooperation and complies with the assumed international obligations may also be interpreted as meaning that the Republic of Lithuania fulfils its international obligations towards the international community in the sphere of the administration of justice, inter alia, its obligation to participate in the activity of international courts. The said obligations imply the duty of the state to appoint suitable and highly qualified representatives (inter alia, judges of national courts) to international institutions or international judicial institutions.

7.1.5. It should be noted that judges of international courts are subject to requirements of high professional qualification, expert knowledge, and/or proficiency in foreign languages. The recognition of the right of a judge of a national court to hold the duties of a judge of an international court (in the cases where the duties of a judge of a national court and those of a judge of an international court are combined) means the recognition of high professional qualification held by him/her, as well as his/her ability to properly administer justice both on the national and international level and thus to contribute to achieving the constitutional objectives of the foreign policy of the Republic of Lithuania, inter alia, to complying with the international obligations in the sphere of the administration of justice.

Thus, the established requirements for judges relating to high professional qualification and expert knowledge are aimed at ensuring the authority of courts as judicial power that is independent and impartial, as well as the proper and effective fulfilment of judicial functions.

7.2. As mentioned before, Paragraph 1 of Article 113 of the Constitution provides, inter alia, that judges may not hold any other elective or appointive office, or work in any business, commercial, or other private establishments or enterprises. This prohibition is aimed at ensuring the independence and impartiality of judges, as well as the proper fulfilment of the function of the administration of justice, which is attributed to courts under the Constitution, inter alia, Article 109 thereof. It should also be noted that the prohibition preventing judges from working in business, commercial, or other private establishments or enterprises does not apply to their educational, creative, inter alia, scientific, activity in educational or scientific establishments: under the Constitution, the said activity is allowed.

In this context, it should also be mentioned that the Constitution, inter alia, Paragraph 2 and Article 103 and Article 112 thereof, explicitly provides for other positions in courts that may be held only by a judge of a particular court, namely, the positions of the President of the Constitutional Court, the President of the Supreme Court, the President of the Court of Appeal, as well as the presidents of regional, local, and specialised courts.

7.2.1. It should be noted that Paragraph 5 of Article 112 of the Constitution explicitly provides that a special institution of judges, as provided for by law, advises the President of the Republic on the appointment, promotion, and transfer of judges, or their release from duties. The Constitutional Court has held that this state institution must be comprised only from judges, since, under the Constitution, no other institution, official, or other person may have the powers to advise the President of the Republic on the appointment, promotion, and transfer of judges, or their release from duties (the Constitutional Court’s ruling of 9 May 2006).

7.2.2. Thus, under the Constitution, judges may perform certain other judicial duties specified expressis verbis, including duties in judicial self-government bodies, inter alia, those in a special institution of judges, which is provided for in Paragraph 5 of Article 112 of the Constitution.

7.2.3. It should also be noted that, under Paragraph 4 of Article 111 of the Constitution, the formation and competence of courts is established by the Law on Courts of the Republic of Lithuania. The Constitutional Court has held that the Constitution not only obliges the legislature to lay down, by means of a law, the establishment and competence of all the courts of the Republic of Lithuania (thus, including the status, formation, exercise of powers (activity), and guarantees of courts of general jurisdiction, the status of judges of these courts, etc.), but also expressis verbis consolidates the title of this law – the Law on Courts (the Constitutional Court’s rulings of 28 March 2006, 9 May 2006, and 22 October 2007 and its decision of 15 May 2009).

Thus, other positions that judges are also allowed to hold may be established in the Law on Courts, which is expressis verbis specified in the Constitution, as, for instance, the deputy president of a court, or the chairperson of a particular division of a court.

8. In the context of the questions raised by the petitioner, it should be noted that judges of national courts may also perform the duties of judges of international courts (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court) if such a possibility is provided for in the obligations consolidated in international treaties of the Republic of Lithuania to participate in the activity of international courts and implies the duty of the state to appoint highly qualified representatives (inter alia, judges of national courts) to international institutions or international judicial institutions. It should also be noted that the activity of such representatives, where they combine the duties of a judge of a national court and those of a judge of an international court, contributes to the achievement of the constitutional objectives of the foreign policy pursued by the Republic of Lithuania, inter alia, to the fulfilment of the international obligations in the sphere of the administration of justice, as well as to the creation of the international order based on law and justice. In addition, the said activity where the duties of a judge of a national court and those of a judge of an international court are combined must not be continuous – it may be carried out only on a temporary basis.

The performance of the duties of a judge of an international court may not be considered the activity of a judge prohibited by Paragraph 1 of Article 113 of the Constitution, since the mission of the duties of a judge of a national court and that of the duties of a judge of an international court is to administer justice: judges are subject to the same requirements of the independence and impartiality of courts and judges, they are granted a special status, inter alia, the term of powers of judges is inviolable and any interference with the activity of judges and courts is prohibited. It should be noted that a judge of a national court, when holding the duties of a judge of an international court (in the cases where the duties of a judge of a national court and those of a judge of an international court are combined), may not lose his/her powers of a national judge solely on such grounds. At the same time, it should also be noted that combining the duties of a judge of a national court and those of a judge of an international court in itself does not give rise to doubts as to the impartiality and independence of a judge.

In view of this fact, it should be held that, under the Constitution, judges are allowed to perform certain other specified duties in courts and in judicial self-government bodies, whereas international treaties of the Republic of Lithuania may also provide for situations where judges may perform, inter alia, the duties of judges of international courts (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court). Such an activity must be compatible with the constitutional duty, arising for courts and judges from Article 109 of the Constitution, to administer justice in a proper and effective manner.

It should also be held that the right of judges to perform the duties of judges of international courts (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court) also implies their right to receive remuneration for the performance of such duties. At the same time, it needs to be noted that, as it has been mentioned on more than one occasion, according to Paragraph 1 of Article 113 of the Constitution, judges may not receive any remuneration other than the remuneration established for judges and payment for educational or creative activities; therefore, the conclusion should be drawn that, when performing the duties of judges of international courts (in the cases where the duties of a judge of a national court and those of a judge of an international court are combined), judges are not allowed to receive the remuneration of a judge of a national court and that of a judge of an international court at the same time.

9. In view of what has been stated above, the conclusion should be drawn that the provision “Judges may receive only the remuneration of a judge paid from the state budget and may not receive any other remuneration with the exception of payment for educational or creative activities” of the second paragraph of Item 6 of Section III of the reasoning part of the Constitutional Court’s ruling of 12 July 2001, inter alia, means that, for the participation in support projects funded by the European Union, by other international organisations, or by foreign states, or in projects under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts, judges may receive remuneration only if, while participating in these projects, they are engaged in educational or creative activity; judges may also receive remuneration in the capacity of a judge of an international court (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court); however, they are not allowed to receive the remuneration of a judge of a national court at the same time.

 

IV

1. In the context of this decision mention should also be made of international documents regulating the status of judges, inter alia, independence of judges and its guarantees.

2. The resolution of 13 December 1985, adopted by the General Assembly of the United Nations, endorsed the Basic Principles on the Independence of the Judiciary. On 13 October 1994, the Committee of Ministers of the Council of Europe, in response to the said document, adopted the Recommendation No R(94)12 on the Independence, Efficiency and Role of Judges addressed to the Member States of the Council of Europe; Item 1.1 of the European Charter on the Statute for Judges, which was approved, on the initiative of the Council of Europe, on 10 July 1998, consolidates that its provisions aim at raising the level of guarantees of competence, independence and impartiality of judges in the various European States, and that the provisions of the Charter cannot justify modifications in the status of judges of national courts tending to decrease the level of guarantees already achieved.

In the context of this decision, it is worth noting that the European Charter on the Statute for Judges also establishes that judges freely carry out activities outside their judicial mandate including those which are the embodiment of their rights as citizens; this freedom may not be limited except in so far as such outside activities are incompatible with confidence in, or the impartiality or the independence of a judge, or his or her required availability to deal attentively and within a reasonable period with the matters put before him or her; the exercise of an outside activity, other than literary or artistic, giving rise to remuneration, must be the object of a prior authorization on conditions laid down by the statute (Item 4.2).

3. In the context of this decision, it should be noted that the principle of independence of judges and courts was also consolidated in the Recommendation CM/REC(2010)12 on Judges: Independence, Efficiency, and Responsibilities, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010, which, inter alia, emphasised that judges may engage in activities outside their official functions; to avoid actual or perceived conflicts of interest, their participation should be restricted to activities compatible with their impartiality and independence (Item 21).

4. In the context of this decision, it should also be noted that in Opinion no 3 (2002) of the Consultative Council of European Judges (CCJE) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality, it is emphasised that working in a different field offers judges an opportunity to broaden their horizons and gives them an awareness of problems in society which supplements the knowledge acquired from the exercise of their profession (Item 35); the specific nature of the judicial function and the need to maintain the dignity of the office and protect judges from all kinds of pressures mean that judges should behave in such a way as to avoid conflicts of interest or abuses of power; this requires judges to refrain from any professional activity that might divert them from their judicial responsibilities or cause them to exercise those responsibilities in a partial manner; in some States, incompatibilities with the function of judge are clearly defined by the judges’ statute and members of the judiciary are forbidden from carrying out any professional or paid activity; exceptions are made for educational, research, scientific, literary or artistic activities (Item 37).

5. It should also be noted that in its Advisory opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (No 2), the European Court of Human Rights emphasised that the election of the judges constituting it is governed by Article 21 § 1 and Article 22 of the European Convention on Human Rights; the first of these provisions determines the qualifications which candidates for the post of judge at the European Court of Human Rights must possess: they “shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. This advisory opinion also emphasises that the established requirements for judges relating to high professional qualification and expert knowledge are aimed at ensuring the authority of courts as judicial power that is independent and impartial, as well as the proper and effective fulfilment of judicial functions; these provisions, among other things, must be interpreted in a manner that they would best comply with the principles of impartiality of courts and judges.

In the previous Advisory opinion on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights adopted by the European Court of Human Rights on 12 February 2008, it was emphasised that candidates for the office of judge in the European Court of Human Rights must be in fact fluent in either French or English; additionally, candidates must have experience in the field of human rights.

6. Article 36 of the Rome Statute of the International Criminal Court also prescribes the qualification requirements for judges and the duties of states in choosing the judges. The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices, one of such requirements is to have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or to have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the International Criminal Court; every candidate must have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

7. Article 19 (2) of the Treaty on European Union prescribes that Judges of the Court of Justice of the European Union shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union.

Article 253 (1) of the Treaty on the Functioning of the European Union prescribes that the Judges of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence. Under Article 254 (2) of this treaty, the members of the General Court shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office.

8. Article 15 (1) of the Agreement on a Unified Patent Court adopted by the Council of the European Union on 19 February 2013 establishes that the Judges of the Unified patent Court shall ensure the highest standards of competence and shall have proven experience in the field of patent litigation. Legally qualified judges shall possess the qualifications required for appointment to judicial offices in a Contracting Member State (Article 15 (2)).

Under Article 17 of this Agreement, legally qualified judges, as well as technically qualified judges who are full-time judges of the Court, may not engage in any other occupation, whether gainful or not, unless an exception is granted by the Administrative Committee (Paragraph 2). Notwithstanding this paragraph, the exercise of the office of judges shall not exclude the exercise of other judicial functions at national level (Paragraph 3). The exercise of the office of technically qualified judges who are part-time judges of the Court shall not exclude the exercise of other functions provided there is no conflict of interest (Paragraph 4).

9. Thus, the above-mentioned international documents consolidate the principles provision that the judges who decide cases properly and within the shortest time possible are free to engage in other activity where it is compatible with the impartiality and independence of a judge and to receive another remuneration for creative, scientific, and educational activity.

It should also be noted that candidates for the office of judges of relevant international courts are subject to requirements of high professional qualification, expert knowledge in a certain area of law, and/or proficiency in foreign languages, and, in certain cases, candidates for the office of judges of an international court must have the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, or to have established competence in relevant areas which is of relevance to the judicial work.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

1. To interpret that the provision “Judges may receive only the remuneration of a judge paid from the state budget and may not receive any other remuneration with the exception of payment for educational or creative activities” of the second paragraph of Item 6 of Section III of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 12 July 2001 (Official Gazette Valstybės žinios, 2001, No 62-2276, corrigendum – Official Gazette Valstybės žinios, 2001, No 86), inter alia, means that judges may receive remuneration for participating in support projects funded by the European Union, by other international organisations, or by foreign states, or for participating in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, where such projects are related to improving the system of justice and the activity of courts only if they are engaged in educational or creative activities while participating in the said projects; judges may also receive remuneration in the capacity of a judge of an international court (in the cases where they combine the duties of a judge of a national court and those of a judge of an international court); however, they are not allowed to receive the remuneration of a judge of a national court at the same time.

2. To refuse to interpret the provision “The notion “work” used in the formula “work in business, commercial and other private establishments or enterprises” in Paragraph 1 of Article 60 of the Constitution in its turn comprises any activity in a Lithuanian, foreign or international private establishment, enterprise or organisation, or representation of such an establishment, enterprise or organisation, if this activity is linked with performing work, taking the office, performing service, fulfilment of other functions, performing other tasks, holding a so-called office of honour, etc. (including participation in collegial management, control and other bodies), irrespective of whether this activity is of permanent, temporary, or one-off (episodic) type, whether this activity is remunerated in any payment or other form, or not, whether this activity is referred to in legal acts as work or any other term, whether or not any other persons engaged in any activity in this establishment, enterprise or organisation exist, whether this activity is duties of a leader or not, whether the person is elected or appointed to the office, whether the activity is registered by any legal contract or other legal act, or performed without any legal contract or legal act” of the second paragraph of Item 13.6 of Section II of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 1 July 2004 (Official Gazette Valstybės žinios, 2001, No 62-2276).

This decision of the Constitutional Court of the Republic of Lithuania 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

                                                                                     Dainius Žalimas