Lt

On the interpretation of the provision of the Constitutional Court’s ruling of 26 January 2006 that is related to the right of petition

Case no 44/03

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE INTERPRETATION OF THE PROVISION OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 26 JANUARY 2006

28 June 2016, no KT20-S10/2016

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, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Sigutė Brusovienė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 531 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing, on 28 June 2016, considered, under written procedure, the petition (no 1B-11/2016) set out in the resolution (No XII-2291) of the Seimas of the Republic of Lithuania of 7 April 2016, requesting the interpretation of the provision of Item 4 of Section IV of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 26 January 2006.

The Constitutional Court

has established:

1. On 26 January 2006, in constitutional justice case no 44/03, the Constitutional Court adopted the ruling on the compliance of Item 2 of Paragraph 1 of Article 10, Paragraph 4 of Article 10, and Article 16 of the Republic of Lithuania’s Law on Petitions with the Constitution of the Republic of Lithuania (Official Gazette Valstybės žinios, 2006, No 11-410; hereinafter referred to as the Constitutional Court’s ruling of 26 January 2006).

2. The Seimas, the petitioner, requests an interpretation whether the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution” means that a citizen of the Republic of Lithuania must have the possibility to challenge before a court a decision of the Seimas or the Government based on the grounds specified in this provision.

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, 14 January 2015, and 16 May 2016).

2. Under Paragraph 3 of Article 61 (wording of 14 May 2015) of the Law on the Constitutional Court, the Constitutional Court must interpret its ruling without changing its content. 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 the 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.

3. 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 the entire official constitutional doctrinal context, as well as in the light of the 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 a particular 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 held on more than one occasion, no official constitutional doctrinal provision of a ruling or other final act of the Constitutional Court may be interpreted in isolation, by ignoring its meaning and systemic links with other official constitutional doctrinal provisions set out in that ruling or other final act of the Constitutional Court, or in other acts of the Constitutional Court, as well as with other provisions (explicit and implicit) of the Constitution.

II

1. The Seimas, the petitioner, requests an interpretation whether the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution” means that a citizen of the Republic of Lithuania must have the possibility to challenge before a court a decision of the Seimas or the Government based on the grounds specified in this provision.

Thus, the petitioner requests to interpret this provision of the ruling of the Constitutional Court in two aspects, i.e., whether it means that:

a citizen of the Republic of Lithuania must have the possibility to challenge before a court the decision of the Seimas as mentioned in the provision based on the grounds specified in this provision;

a citizen of the Republic of Lithuania must have the possibility to challenge before a court a relevant decision of the Government based on the grounds specified in this provision.

2. It is worth noting that the provision whose interpretation is requested by the petitioner was formulated in Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006, in which, inter alia, the compliance of the legal regulation established in the Law on Petitions, under which the decision of the Seimas on refusing to grant a complaint filed against the decision of the Seimas Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration is final and not subject to appeal, with the Constitution was assessed.

It should also be noted that in its ruling of 26 January 2006 the Constitutional Court also assessed the constitutionality of the legal regulation established in the Law on Petitions, under which the decision of the Government Chancellor concerning the decision of the Petitions Commission of the Government not to deem an application to be a petition or to refuse to accept a petition for consideration is final and not subject to appeal. In this ruling, it was held, inter alia, that “having established that the Government Chancellor has the powers to make a decision in the course of consideration of the complaints on the decisions of the Petitions Commission of the Government not to deem the application as a petition as well as on its decisions to refuse to accept a petition for consideration, the powers of the Government itself, which arise from the Constitution, are interfered with”.

Thus, in its ruling of 26 January 2006, the Constitutional Court did not decide on the decision adopted by the Government (as a collegial institution) on refusing to grant the complaint filed against the decision of the Petitions Commission of the Government not to deem an application to be a petition or to refuse to accept a petition for consideration; thus, the Constitutional Court did not investigate the question raised by the petitioner.

3. 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.

4. In view of the above, the Constitutional Court will not interpret whether the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006, which is specified by the petitioner, means that a citizen of the Republic of Lithuania must have the possibility to challenge, based on the grounds specified in this provision, before a court a decision adopted by the Government on refusing to grant the complaint against the decision of the Petitions Commission of the Government not to deem an application to be a petition or to refuse to accept a petition for consideration.

III

1. It has been mentioned that the Seimas, the petitioner, requests an interpretation whether the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution” means that a citizen of the Republic of Lithuania must have the possibility to challenge before a court a decision of the Seimas or the Government based on the grounds specified in this provision.

The petition makes clear that the petitioner seeks to clarify certain aspects of the constitutional right of a person to apply to a court concerning the defence of his/her constitutional right of complaint, namely how should the right of a person (who believes that a decision of the Seimas on refusing to grant a complaint filed against the decision of the Seimas Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration where such a decision of the Seimas is not based on the grounds established in the Law on Petitions or other laws, or is based on grounds that are not laid down in the Law on Petitions or other laws) to challenge before a court such a decision of the Seimas should be understood when, under the Constitution, the review of the legality of the acts adopted by the Seimas falls within the competence of the Constitutional Court and only the subjects specified in the Constitution – the Seimas, 1/5 of all the members of the Seimas, the Government, the President of the Republic, and courts – may apply to the Constitutional Court.

2. It is worth noting that the provision of the Constitutional Court’s ruling of 26 January 2006, whose interpretation is requested by the petitioner, was a constituent part of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006, in which, the compliance of, inter alia, the legal regulation established in the Law on Petitions, under which the decision of the Seimas on refusing to grant a complaint filed against the decision of the Seimas Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration is final and not subject to appeal, with the Constitution was assessed.

Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006, the interpretation of whose provision is requested by the petitioner, is set out as follows:

4. Taking account of the arguments set out, the conclusion should be drawn that the provision “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions to the extent that it consolidates that a person who thinks that the decision of the Seimas, and the municipal council on refusing to grant the complaint on the decisions of the Petitions Commission not to recognise the application as a petition or to refuse to accept the petition for consideration is not grounded on the bases established in the Law on Petitions or other laws, or is grounded on the bases that are not established in the Law on Petitions or other laws may not appeal to court, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution.”

Thus, the petitioner requests to interpret the provision of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006, by means of which the conclusion was drawn concerning the compliance of the provision of the Law on Petitions impugned in that constitutional justice case with the Constitution. It should be noted that this conclusion was consolidated in Item 2 of the operative part of the Constitutional Court’s ruling of 26 January 2006.

3. It has been mentioned that 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; 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 provisions set out in the relevant ruling of the Constitutional Court, the interpretation of whose provision is requested. It has been mentioned that the provisions of a ruling of the Constitutional Court must be interpreted in the light of the entire official doctrinal context, as well as of other (explicit or implicit) provisions of the Constitution that are related to the provision of the Constitution, which in the course of the interpretation of which the provision of the official constitutional doctrine, whose interpretation is requested by the petitioner, was formulated in the ruling of the Constitutional Court.

Thus, the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 December 2006, whose interpretation is, in the specified aspect, requested by the petitioner, should be interpreted in conjunction with other provisions of the said ruling, as well as with the provisions of the official constitutional doctrine formulated in other Constitutional Court’s rulings that are linked to the implementation of the right to apply to a court.

4. While assessing, in Section IV of the reasoning part of the Constitutional Court’s ruling of 26 December 2006, the compliance of the above-mentioned provision of the Law on Petitions with the Constitution, among other things, it was held that the legal regulation, under which it is not allowed to challenge, before a court, the decisions of the Seimas on refusing to grant the complaint against the decisions of the Petitions Commission not to recognize the application as a petition or to refuse to accept the petition for consideration even in those cases, when the decisions, according to the person, are not grounded on the bases established in the Law on Petitions or other laws, or are grounded on the bases that are not established in the Law on Petitions or other laws, restricts the constitutional rights of a person to apply to a court concerning the defence of his/her violated constitutional rights and freedoms, as well as the implementation of the constitutional right of petition of citizens.

5. Paragraph 3 of Article 33 of the Constitution prescribes that citizens shall be guaranteed the right of petition; the procedure for the implementation of this right is established by law.

When interpreting Paragraph 3 of Article 33 of the Constitution in the Constitutional Court’s ruling of 26 January 2006, the following provisions of the official constitutional doctrine were formulated:

the constitutional right of petition is one of the rights by implementing which citizens may participate in the governance of their state; in the legal system of Lithuania, like in most European countries, a petition is usually understood as an application of an individual or a certain group for institutions of public power, which contains a demand (proposal) that a certain issue be resolved, where such an issue is important not only to the petitioner, but also to society or part thereof, and when, in order to resolve the said issue, it is necessary to amend or supplement an effective legal act or declare it as no longer valid, or to pass a new legal act;

the legislature has the duty to regulate the relations of petitions not through any legal act, but precisely by means of a law, in which all the most important elements of the procedure for implementing the right of petition must be established, i.e. such a law must define reasons on the grounds of which it would be allowed to file a petition; it must define institutions of public power with which petitions may be filed; it must define formal requirements with which petitions must comply; the procedure for filing a petition; the procedure for adopting decisions refusing to accept petitions, and for appealing against such decisions, etc.; under the Constitution, when establishing the procedure for implementing the right of petition by law, the legislature has certain discretion; however, the legislature may not deny the very essence of the right of petition, nor may it artificially restrict or groundlessly burden the implementation of this constitutional right of citizens;

under the Constitution, the Seimas, the Government, and the municipal councils have the right to freely decide which demands (proposals) put forward in a petition of citizens should be granted and which not;

the constitutional concept of the right of petition implies that the constitutional right of petition of a citizen is deemed to have been implemented when a certain institution of public power with particular powers considers a filed petition and makes a decision on granting or not granting the demands (proposals) of the petition.

6. In this context it should be noted that, in the Constitutional Court’s ruling of 26 January 2006, among other things, it was held that after a decision of the Seimas, the Government or the municipal council on granting the demands and proposals put forward in the petition has been made, the constitutional right of petition of the citizen has been implemented; therefore, it was decided that the legal regulation, under which the decisions of the Seimas, the Government, and the municipal council regarding granting the demands and proposals put forward in the petitions shall be final and not subject to appeal, does not deny the right of petition of citizens, nor restricts its implementation; nor it violates the right of a person, whose constitutional rights or freedoms are violated, to apply to court.

7. It has been mentioned that by applying to the Constitutional Court concerning the interpretation of the provision of the Constitutional Court’s ruling of 26 January 2006, the petitioner sought to clarify certain aspects of the constitutional right of a person to apply to a court.

The Constitutional Court has formulated in its jurisprudence an extensive official constitutional doctrine of the right of access to a court and has revealed the constitutional imperatives that should be complied with in regulating particular relations by means of legal acts.

7.1. The Constitutional Court has held that each person who believes that his/her rights or freedoms are violated has the right to the judicial protection of his/her violated constitutional rights or freedoms; the defence of violated rights in a court is guaranteed to persons regardless of their legal status (inter alia, the Constitutional Court’s rulings of 17 August 2004, 13 May 2010, and 5 July 2013); the implementation of the right to apply to a court is determined by the fact that the person himself/herself understands that his/her rights or freedoms are violated (the Constitutional Court’s rulings of 1 October 1997, 16 January 2006, and 28 March 2006). The guarantee of the judicial protection of the rights and freedoms of persons is an essential element of the constitutional institute of the rights and freedoms of persons (inter alia, the Constitutional Court’s rulings of 30 June 2000 and 29 December 2004, as well as its decision of 3 July 2013). The rights of a person must be defended not formally, but in reality and effectively against unlawful actions of both private persons and state institutions (inter alia, the Constitutional Court’s rulings of 8 May 2000 and 28 March 2006, as well as its decision of 3 July 2013).

In its rulings, the Constitutional Court has held that, if the constitutional right of persons to apply to a court were not ensured, the generally recognised legal principle of ubi ius, ibi remedium – if there is a certain right (freedom), there must be a measure for its protection – would also be disregarded; under the Constitution, a legal situation where it is impossible to defend a certain right or freedom of persons (as well as to defend such a right before a court), even though those persons believe that such a right or freedom is violated, is impermissible; the Constitution does not tolerate such a legal situation (inter alia, the Constitutional Court’s rulings of 21 January 2008 and 19 November 2015 and its decision of 16 April 2014).

7.2. The Constitutional Court has also held on more than one occasion that, in a democratic state, the court is the main institutional guarantee of human rights and freedoms (the Constitutional Court’s rulings of 18 April 1996, 2 July 2002, and 10 December 2012). Under the Constitution, the legislature has the duty to lay down such a legal regulation on the basis of which all disputes concerning the violation of the constitutional rights and freedoms of a person could be resolved in a court (inter alia, the Constitutional Court’s rulings of 2 July 2002, 29 December 2004, and 5 July 2013). A prelitigation procedure for settling disputes may also be established (inter alia, the Constitutional Court’s rulings of 2 July 2002, 29 December 2004, and 22 January 2008); however, the legislature is not permitted to establish any such legal regulation that would deny the right of a person who believes that his/her rights or freedoms are violated to defend his/her rights or freedoms in a court (inter alia, the Constitutional Court’s decision of 31 January 2007 and its ruling of 5 July 2013).

The legal regulation that consolidates the procedure for implementing the judicial protection of the rights and freedoms of a person must be in line with the constitutional requirement of legal clarity; the legislature must clearly establish in laws in what manner and at what court persons can lodge their applications in order that they would implement in reality their right to apply to a court regarding the violation of their rights and freedoms (inter alia, the Constitutional Court’s rulings of 29 December 2004, 27 November 2006, and 13 May 2010). When complying with the constitutional principle of a state under the rule of law, the legislature has the discretion to establish at what court and under what procedure persons may lodge their applications regarding the defence of their violated rights and freedoms (the Constitutional Court’s ruling of 27 November 2006).

8. Paragraph 4 of Article 111 of the Constitution provides that the formation and competence of courts is established by the Law on Courts. When interpreting this constitutional provision, 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 specified in Paragraph 1 of Article 111 of the Constitution, but also expressis verbis consolidates the title of this law – the Law on Courts (the Constitutional Court’s rulings of 28 March 2006, 22 October 2007, and 15 November 2013); this imperative (which arises from the Constitution) of the legal regulation governing the activity of courts of general jurisdiction should also be applied mutatis mutandis to the legal regulation governing specialised courts, which are established under Paragraph 2 of Article 111 of the Constitution (the Constitutional Court’s rulings of 28 March 2006 and 22 October 2007 and its decision of 8 August 2006). At the same time, it was noted that, in itself, such a constitutional legal regulation does not mean that certain relations connected with the aforesaid relations may not in general be regulated by means of other laws as well; when regulating the said relations by law, the legislature must pay regard to the Constitution (the Constitutional Court’s rulings of 28 March 2006 and 15 November 2013).

It is worth noting that while implementing these constitutional provisions in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), it was established that the competence of courts shall be established by the Constitution, the Law on Courts, and other laws (Article 12).

In the context of this decision, it should be noted that, when regulating petition relations and implementing the requirement stemming from Paragraph 3 of Article 33 of the Constitution to establish by law, inter alia, the procedure for adopting decisions on refusing to accept petitions and for filing appeals against such decisions, the legislature, invoking Paragraph 4 of Article 111 of the Constitution, whereby the competence of all the courts specified in Paragraphs 1 and 2 of Article 111 of the Constitution must be established by law, has the discretion to establish which court has the competence to consider cases on the protection of citizens’ constitutional right of petition, inter alia, cases dealing with refusing to grant a complaint filed against a decision not to deem an application to be a petition or not to accept a petition for consideration.

9. Under Paragraph 1 of Article 102 of the Constitution, the Constitutional Court has the exclusive constitutional competence to investigate and decide on whether any act adopted by the Seimas, the President of the Republic, or the Government, or whether any act (part thereof) adopted by referendum is in conflict with any higher-ranking legal act, inter alia (and, first of all), with the Constitution, namely: whether any constitutional law (part thereof) is in conflict with the Constitution, whether any law (part thereof) or the Statute of the Seimas (part thereof) is in conflict with the Constitution and constitutional laws, whether any substatutory legal act (part thereof) adopted by the Seimas is in conflict with the Constitution, constitutional laws, laws, and the Statute of the Seimas, whether any act (part thereof) adopted by the President of the Republic is in conflict with the Constitution, constitutional laws, and laws, and whether any act (part thereof) adopted by the Government is in conflict with the Constitution, constitutional laws, and laws (inter alia, the Constitutional Court’s rulings of 28 March 2006 and 2 September 2011).

10. Under Article 106 of the Constitution, a group of not less than 1/5 of all the members of the Seimas, the Government, the President of the Republic, or courts have the right to apply to the Constitutional Court concerning the compliance of the said acts with higher-ranking legal acts, inter alia (and, first of all), with Constitution. Under Paragraph 4 of Article 106 of the Constitution, a resolution of the Seimas on the application to the Constitutional Court for an investigation into the conformity of an act with the Constitution suspends the validity of that act. The Constitutional Court has noted that, based on the systemic interpretation of these provisions, it needs to be held that the Seimas in corpore has the constitutional powers, by adopting its resolution, to apply to the Constitutional Court and to request it to investigate the compliance of legal acts with the Constitution and laws (inter alia, the Constitutional Court’s decisions of 8 January 2008 and 30 December 2015).

Thus, under Article 106 of the Constitution, individuals do not have the right to directly address the Constitutional Court for determining the legality of the acts of the Seimas, the President of the Republic, or the Government even when the constitutional review of such acts falls under the competence of the Constitutional Court and they could violate the rights or freedoms of such persons.

In this context, it should be noted that on 4 July 2007 the Seimas adopted the resolution (No X-1264) on approving the concept of consolidation of the institute of individual constitutional complaint, whereby it approved the concept of consolidation of the institute of individual constitutional complaint. The aim of this concept was to create preconditions for the implementation of a person’s right to judicial defence at the Constitutional Court and the definition of the model of the establishment of the individual constitutional complaint in the legal system of the Republic of Lithuania. The above-mentioned Seimas resolution was amended by the resolution (No XI-577) of the Seimas of 17 December 2009 on the amendment of the resolution (No X-1264) of the Seimas on approving the concept of consolidation of the institute of individual constitutional complaint; however, no legislative processes on the grounds of this concept have taken place so far.

It should also be mentioned that, in those states where it exists, the individual constitutional complaint may be considered as an effective remedy for the protection of human rights (the judgment of the European Court of Human Rights of 3 January 2013 in case Hasan Uzun v. Turkey, application no. 10755/13; the judgment of the Grand Chamber of 25 March 2014 in case Vučković and Others v. Serbia, applications’ nos. 17153/11 and 17157/11, etc.)

In the Study on Individual Access to Constitutional Justice drawn up by the European Commission for Democracy through Law (Venice Commission), acting as an advisory body to the Council of Europe on the questions of constitutionalism, it was, among other things, noted that indirect access to individual justice is a very important tool to ensure respect for individual human rights at the constitutional level, however, it is not sufficient, therefore, it should be combined with a possibility of direct individual access to constitutional courts (Study No CDL-AD(2010)039rev of 27 January 2011, adopted by the Venice Commission at its 85th Plenary Session on 17-18 December 2010).

11. Under the Constitution, the courts, if they have doubts over the compliance of a legal act (part thereof) issued by the Seimas, the President of the Republic or the Government, or that adopted by referendum, with a higher-ranking legal act, inter alia (and, first of all), with the Constitution, not only may, but also must apply to the Constitutional Court (the Constitutional Court’s rulings of 24 October 2007 and 28 March 2006).

In the context of this decision, it should be noted that, as the Constitutional Court has held while interpreting Paragraph 2 of Article 6, Paragraph 1 of Article 30, Paragraph 1 of Article 109 and Article 110 of the Constitution, as well as the constitutional principle of a state under the rule of law, the right of each person to defend his/her rights on the basis of the Constitution and the right of a person whose constitutional rights or freedoms are violated to apply to a court also imply that each party of a case considered by a court, when such a party has doubts over the compliance of a law or another legal act (part thereof) with the Constitution (with another higher-ranking legal act), where such a law or another legal act (part thereof) may be applied in that case and where an investigation into the compliance of which with the Constitution (with another higher-ranking legal act) falls under the jurisdiction of the Constitutional Court (i.e. when such a party doubts the compliance of a certain act (part thereof) of the Seimas, the President of the Republic, or the Government with the Constitution (with another higher-ranking legal act)), has the right to apply to a court of general jurisdiction or a specialised court (established under Paragraph 2 of Article 111 of the Constitution) that considers the relevant case, requesting such a court to suspend the consideration of the case and to apply to the Constitutional Court with the petition to investigate and to decide whether the legal act (part thereof) that was passed by the Seimas, the President of the Republic, or the Government and is applicable in the same case is in conflict with a higher-ranking legal act, inter alia (and, first of all), with the Constitution (the Constitutional Court’s ruling of 28 March 2006, its decision of 5 July 2007, and ruling of 24 October 2007).

The Constitutional Court has held that the decisions of courts to apply or (even though it is requested by a certain party of the case considered in that court) not to apply to the Constitutional Court with a petition requesting both an investigation into, and a decision on, whether the legal act (part thereof) passed by the Seimas, the President of the Republic or the Government, or that adopted by referendum, which must be applied in the said case, is in conflict with a higher-ranking legal act, inter alia (and, first of all), with the Constitution must, among other things, be substantiated by legal arguments (reasoning) and the argumentation must be rational; final acts of the court must be clear to the persons participating in the case as well as other persons (the Constitutional Court’s ruling of 28 March 2006 and its decision of 5 July 2007).

Thus, in the context of the question raised by the petitioner, it should be noted that the fact that the constitutional right of persons has been violated by a legal act (i.e. by a certain act of the Seimas, the President of the Republic, or the Government) the investigation into the legality of which falls, under the Constitution, under the exclusive competence of the Constitutional Court, where those persons, under the Constitution, have no powers to directly initiate a constitutional justice case at the Constitutional Court for determining the legality of such an act, does not mean that such persons are not allowed in general to defend their violated rights or freedoms, i.e. the said persons are allowed to defend them before a court as well. The Constitution consolidates the right of persons whose constitutional rights or freedoms have been violated to apply to a court. This right implies not only the fact that, in such situations, the rights and freedoms of persons, their legitimate interests and legitimate expectations must and can be defended, but also the fact that courts (judges), while considering cases, have the duty to apply to the Constitutional Court when they face doubts over the compliance of an act (part thereof) adopted by the Seimas, the President of the Republic, or the Government with higher-ranking legal acts, inter alia (and, first of all), with the Constitution.

At the same time, it should be noted that, as it was held by the Constitutional Court, the courts to which persons concerned apply with petitions requesting to investigate the acts adopted by the Seimas, the President of the Republic, or the Government may not take over the constitutional powers of the Seimas, the President of the Republic, or the Government, i.e. adopt relevant decisions for these institutions of power or oblige the said institutions of power to pass acts related with execution of state power (the Constitutional Court’s ruling of 13 May 2010).

12. In the context of the issue concerned, among other things, it should be noted that the Constitutional Court has, on more than one occasion, considered cases subsequent to the petitions of courts, which decide on a possible violation of human rights and freedoms committed by means of an act adopted by a state power institution; the investigation of the legitimacy of such an act had been requested by the said courts.

For instance, the Constitutional Court’s ruling of 16 January 2007 adopted in the case instituted subsequent to the petitions of the Vilnius Regional Court, whereby, after it had suspended the consideration of cases on the dismissal of judges from office, the said court applied to the Constitutional Court requesting to investigate the legitimacy of the Decree of the President of the Republic (No 164) on releasing judges of local courts and presidents of courts from office of 22 July 2003; the Constitutional Court’s rulings of 17 December 2007 and 20 December 2007 were adopted in the cases initiated subsequent to the petitions of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the legitimacy of the decree of the President of the Republic of Lithuania (No 140) on releasing a judge of a regional court from office of 1 July 2004 and the decree (No 225) on releasing a judge of a local court from office of 3 March 2005, which had been impugned in cases considered by this petitioner; the Constitutional Court’s ruling of 20 February 2013 adopted in a case initiated upon receipt of the petition from the Vilnius Regional Administrative Court that had dealt with a dispute about the dismissal of the then Secretary General of the Seimas from office initiated by the petitioner in the said case who had applied to the Vilnius Regional Administrative Court concerning the legitimacy of the resolution (No XI-234) of the Seimas on the dismissal of Gintautas Vilkelis from the office of the Secretary General of the Seimas of 28 April 2009.

13. As mentioned before, the petitioner requests to elucidate the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution”.

Thus, under the Constitution, inter alia, Paragraph 1 of Article 30 and Paragraph 3 of Article 33 thereof, such a refusal of the Seimas (or another competent institution) to grant a complaint filed against a decision of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration where the said refusal is not based on the grounds laid down in the Law on Petitions or other laws or is based on such grounds that are not laid down in the Law on Petitions or other laws must be subject to the right to apply to a court. Consequently, a citizen who believes that his/her constitutional right consolidated in Paragraph 3 of Article 33 of the Constitution is violated (not implemented) due to the fact that an institution with particular powers refused to deem his/her application a petition or to accept his/her petition not on the grounds laid down in the Law on Petitions or other laws must have the right to apply to a court regarding the defence of his/her possibly violated constitutional right of petition.

14. While interpreting the provision specified by the petitioner in the context of the provisions set out in the official constitutional doctrine, it should be held that, under the Constitution, inter alia, Paragraph 1 of Article 30 and Paragraph 3 of Article 33 thereof, while regulating petition relations, the legislature, when establishing by law, inter alia, the procedure for filing petitions, as well as the procedure for adopting decisions on refusing to accept petitions and for filing appeals against such decisions, must establish such a legal regulation that would ensure the possibility of challenging before a court a final decision of an institution that accepts petitions where the said decision refuses to deem a particular application a petition or to accept a petition and where such a decision is not based on grounds that are laid down in the Law on Petitions or other laws or is based on such grounds that are not laid down in the Law on Petitions or other laws. The constitutional right of petition of citizens must be defended not in a perfunctory manner, but in reality and efficiently.

In the context of this decision, it should be noted that a decision to refuse to deem an application filed by a citizen to be a petition or to refuse to accept a petition for consideration may be formalised by means of a substatutory legal act (as, for instance, a resolution of the Seimas, a protocol resolution of the Seimas, a decision of the Seimas, etc.); such a legal act must be adopted on the basis of a particular law and must not be in conflict with higher-ranking legal acts, inter alia (and, first of all), with the Constitution.

In view of the fact that, under the Constitution, while administering justice, courts (judges) must invoke only such laws that are not in conflict with the Constitution and may not apply any legal act that is in conflict with the Constitution and/or another higher-ranking legal act, in the cases where the decision to refuse to deem an application filed by a citizen to be a petition or to refuse to accept a petition for consideration is adopted by a state institution (the Seimas, the Government, the President of the Republic), where the consideration of the legality of acts adopted by such an institution falls under the competence of the Constitutional Court, a court (judge) that considers a case, when faced by doubts over the legality of such an act, has the duty to suspend the consideration of the case and to apply to the Constitutional Court for determining the compliance of the said decision adopted by a state institution with higher-ranking legal acts, inter alia (and, first of all), with the Constitution, where such a decision, in the opinion of a court considering a case, is not based on grounds laid down in the Law on Petitions and other laws or is based on such grounds that are not laid down in the Law on Petitions or other laws. The Constitutional Court has held that, in cases where a court considering such a case has doubts over the compliance of a legal act applicable in that case with the Constitution and/or higher-ranking legal acts and decides not to apply to the Constitutional Court in order to remove the said doubts so that a legal act the constitutionality of which is not questionable would be applied in the said case, such a court would risk adopting an unfair decision (inter alia, the Constitutional Court’s rulings of 16 January 2006, 28 March 2006, and 25 January 2013).

In those cases where a court (judge) that considers a case, upon assessing the evidence and other material of the case and upon establishing the relevant important circumstances, is not faced by doubts about the compliance of such an act adopted by an institution of state power that refuses to deem an application of a citizen to be a petition or refuses to accept a petition for consideration with higher-ranking legal acts, inter alia, the Law on Petitions, such a court (judge) has the constitutional powers to consider the said case on its merits.

In the context of the question raised by the petitioner, it should also be noted that the legislature must clearly establish in laws in what manner and to which court (for instance, establish, in a relative law, a special competence of a court of general jurisdiction or a specialised court or, under Paragraph 2 of Article 111 of the Constitution, establish a specialised court, etc.) a person can apply in order to defend his/her right of petition, inter alia, when this right was violated by the decision of a public authority to refuse recognising an application from a citizen as a petition or accepting a petition for consideration, where such a decision is not based on the grounds established in the Law on Petitions or other laws, or based on such grounds that are not established in the Law on Petitions or other laws. If the legislature failed to introduce the real possibilities of defending the right of petition of citizens, which is guaranteed in Paragraph 3 of Article 33 of the Constitution, and, inter alia, if it failed to establish a procedure for challenging before a court a final decision to refuse to deem an application to be a petition or to refuse to accept a petition for consideration, the effectiveness of the constitutional right of petition of citizens would be denied, the practical implementation of the said right would be restricted and, at the same time, the right of persons to apply to a court regarding the defence of their right of petition would be violated.

15. In the light of the foregoing arguments, the conclusion should be drawn that the provision of Item 4 of Section IV of the reasoning part of the Constitutional Court’s ruling of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution”, inter alia, means that under the Constitution, a citizen has the right, under the procedure established by laws, to apply to court concerning the decision of the Seimas to refuse to grant the complaint against the decisions of the Petitions Commission of the Seimas not to recognise the application as a petition or to refuse to accept the petition for consideration, where such a decision is not grounded on the bases established in the Law on Petitions or other laws, or is grounded on the bases that are not established in the Law on Petitions or other laws, and a court (judge) that considers a case, when faced by doubts over the legality of such a decision of the Seimas, must suspend the consideration of the case and to apply to the Constitutional Court for removing these doubts.

IV

1. In the context of this decision, it is worth noting that a person’s right to apply to court in defending the violated rights and freedoms is also consolidated in international documents ensuring the protection of human rights and to which the Republic of Lithuania is a party.

2. This right of a person is guaranteed in Paragraph 1 of Article 14 of the International Covenant on Civil and Political Rights of 19 December 1966 (hereinafter referred to as the Covenant), under which, while interpreting it together with the obligations of the state according to Paragraph 3 of Article 2 of the Covenant, each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy within the state. Thus, according to the said provisions of the Covenant, every person must be ensured his/her right to apply to court for the proper and effective defence of his/her violated rights.

3. Paragraph 1 of Article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms adopted on 4 November 1950 (hereinafter referred to as the Convention) also guarantees the right to a fair trial, and Article 13 obliges the states parties to the Convention to an effective remedy before a national authority. Under Article 13 of the Convention, everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

It should be noted that in the case-law of the European Court of Human Rights, the right to a trial is not absolute and its exercise may, in certain cases, be limited, for instance, for the complaints linked to the political rights and duties of a person, such as complaints concerning the right to vote, dissolution of a political party, the prohibition for a person to stand for election, or the complaints concerning the right to participate in the political activity (among many others, judgment in a case Pierre Bloch v. France, Application no. 24194/94; the Grand Chamber’s judgment of 6 October 2005, in the case Hirst v. the United Kingdom (no. 2) Application no. 74025/01, etc.). The right to a trial guaranteed in Article 6 of the Convention usually does not apply for the complaints concerning the refusal of entry, residence (stay) in it or deportation, as the states enjoy wide discretion in this sphere with regard to the international obligations undertaken by these states (judgment of 21 October 1997 in the case Boujlifa v. France, Application no. 25404/94; the Grand Chamber’s judgment of 4 February 2005, in the case Mamatkulov and Askarov v. Turkey, nos. 46827/99 and 46951/99, etc.).

However, in any case, the possible limitations of the right to a trial under Paragraph 1 of Article 6 of the Convention must be legitimate and they can by no means deny the essence of the right to a trial itself. The above-mentioned limitations must also be necessary and proportionate for the legitimate objectives pursued (among other things, see: the judgment of 21 February 1975, in the case Golder v. the United Kingdom, no 4452/70; the judgment of 28 May 1985, in the case Ashingdane v. the United Kingdom, Application no. 8225/78; the judgment of 22 October 1996, in the case Stubbings and Others v. the United Kingdom, paragraphs 51–52; the Grand Chamber’s judgment of 14 December 2006, in the case Markovic and Others v. Italy, no 1398/03; the Grand Chamber’s judgment of 23 March 2010, in the case Cudak v. Lithuania, Application no. 15869/09, paragraphs 54–59, etc.).

4. The right to a trial is also consolidated in the Charter of Fundamental Rights of the European Union. Article 47 of this Charter establishes that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal.

In the context of this decision, it should be noted that, while deciding on the right to challenge the decisions of the Committee on Petitions of the European Parliament on the consideration of petitions before a court, the European Court of Human Rights held that it must be possible to make a judicial review of the decision whereby the European Parliament had decided that the petition submitted to it had not met the requirements established in Article 227 of the Treaty on the Functioning of the European Union, as this decision had/has the influence over the right of the party concerned to submit a petition. The same should apply to the decision by which the European Parliament, disregarding the very essence of the right of petition, refused to consider, or refrained from considering, a petition addressed to it and, consequently, failed to verify whether it met the conditions laid down in Article 227 of the Treaty on the Functioning of the European Union. In this decision, it was also held that, as concerns the appeal which is declared as the petition, the European Parliament has a broad discretion, of a political nature; therefore, a decision taken in that regard is not amenable to judicial review (the judgment of the Grand Chamber of 9 December 2014 in case Schönberger v. the European Parliament, application no. C-261/13 P).

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 of Item 4 of Section IV of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution”, inter alia, means that under the Constitution of the Republic of Lithuania a citizen has the right, under the procedure established by laws, to apply to court concerning the decision of the Seimas to refuse to grant the complaint against the decisions of the petitions commission of the Seimas not to recognise the application as a petition or to refuse to accept the petition for consideration, where such a decision is not based on the grounds established in the Law on Petitions or other laws, or based on such grounds that are not established in the Law on Petitions or other laws, and a court (judge) that considers a case, when faced by doubts over the legality of such a decision of the Seimas, must suspend the consideration of the case and apply to the Constitutional Court for removing these doubts.

2. To refuse to interpret the provision whether the provision of Item 4 of Section IV of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 26 January 2006 “the decision to refuse to grant the complaint shall be final and shall not be subject to appeal” of Paragraph 4 of Article 10 of the Law on Petitions, to the extent that it consolidates that a person may not challenge, before a court, the decision of the Seimas or municipal council on refusing to grant a complaint filed against the decisions of the Petitions Commission not to deem an application to be a petition or to refuse to accept a petition for consideration, where such a decision, according to the said person, is not based on the grounds established in the Law on Petitions or other laws, or is based on the grounds that are not laid down in the Law on Petitions or other laws, is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 3 of Article 33 of the Constitution” means that a citizen of the Republic of Lithuania must have the possibility to challenge before a court a decision of the Seimas or the Government based on the grounds specified in this provision.

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

                                                                     Egidijus Šileikis

                                                                     Algirdas Taminskas

                                                                     Dainius Žalimas