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On the dismissal of the Secretary General of the Seimas

Case No. 41/2009

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 
RULING

ON THE COMPLIANCE OF THE RESOLUTION (NO. XI-234) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA “ON THE DISMISSAL OF G. VILKELIS FROM THE OFFICE OF THE CHANCELLOR OF THE SEIMAS” of 28 April 2009 with the constitution of the republic of lithuania, the republic of lithuania’s law on the state service and the statute of the seimas of the republic of lithuania

 

20 February 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 14 February 2013, in the Court sitting considered, under written procedure, constitutional justice case No. 41/2009 subsequent to the petition (No. 1B-52/2009) of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether the Resolution (No. XI-234) of the Seimas of the Republic of Lithuania “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” of 28 April 2009 is not in conflict with Article 75 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, Paragraph 1 (wording of 7 June 2007), Paragraph 2 (wording of 22 December 2005) and Paragraph 5 (wording of 22 December 2005) of Article 44 of the Republic of Lithuania’s Law on the State Service and Paragraph 1 of Article 109, Paragraph 1 of Article 217 and Paragraph 2 of Article 218 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998).

The Constitutional Court

has established:

I

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

1. On the proposal of the Speaker of the Seimas, Gintautas Vilkelis was appointed without competition to the office of the Chancellor of the Seimas for five years by the Seimas Resolution (No. X-827) “On Appointing G. Vilkelis as the Chancellor of the Seimas” of 3 October 2006. On 28 April 2009, while following Article 31 of the Statute of the Seimas, the Seimas adopted the Resolution (No. XI-234) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” (hereinafter also referred to as Seimas resolution No. XI-234 of 28 April 2009) (its draft was submitted by the Speaker of the Seimas), whereby G. Vilkelis was dismissed from office.

2. The Chancellor of the Seimas is not the head of an establishment admitted to office on the basis of political (personal) confidence, since this fact is not provided in the legal acts. The office of the Chancellor of the Seimas is not compatible with participation in the activity of a political party or political organisation. On 14 November 2008, the assessment of service activity of G. Vilkelis was carried out, whereas the assessment of service activity of the heads of establishments admitted to office on the ground of political confidence is not carried out, however, G. Vilkelis was dismissed from the office of the Chancellor of the Seimas on the ground established in Item 7 (wording of 7 June 2007) of Paragraph 1 of Article 44 of the Law on the State Service—as the head of an establishment admitted to office on the ground of political (personal) confidence who has lost the confidence of a state collegial institution. The Chancellor of the Seimas, as an official appointed by the Seimas, may be dismissed from office on the ground provided in Article 75 of the Constitution (when the Seimas expresses no-confidence in him by majority vote of all the Members of the Seimas), as well as on the grounds established in Paragraphs 1 and 2 of Article 44 of the Law on the State Service, while following the procedure established in the Law on the State Service and the Statute of the Seimas. Because of the fact that there is no ground to state that the Chancellor of the Seimas is the head of an establishment admitted to office on the ground of political (personal) confidence and there were no circumstances due to which he could be dismissed on other grounds established in Paragraphs 1 and 2 of Article 44 of the Law on the State Service, it is doubtful whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 1 (wording of 7 June 2007) and Paragraph 2 (wording of 22 December 2005) of Article 44 of the Law on the State Service, insofar as it was adopted on the ground not provided in these paragraphs.

3. At the time when the question of his dismissal from office was considered, G. Vilkelis was temporarily incapable of work, meanwhile, under Paragraph 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service, a state servant may not be dismissed from office during his temporary incapacity for work and during his leave (with the exception of certain provisions which are not applicable to G. Vilkelis), thus, it is doubtful whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service.

4. Even though, while dismissing the Chancellor of the Seimas Article 75 of the Constitution is applied, under which officials appointed or elected by the Seimas shall be dismissed from office when the Seimas expresses no-confidence in them by majority vote of all the Members of the Seimas, however, even in that case one must follow the procedure established in Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998). The proposal to dismiss G. Vilkelis from office was submitted by the Speaker of the Seimas, even though under Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998), proposal to dismiss a Seimas official or a head of a state institution who is appointed by the Seimas, with the exception of cases of impeachment proceedings as provided for in the Constitution, must be considered when it is presented by a reasoned letter from the Board of the Seimas, a committee of the Seimas, or at least one-fifth of the Members of the Seimas. Thus, it is doubtful whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Article 75 of the Constitution and Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998).

5. The question of dismissal of G. Vilkelis from the office of the Chancellor of the Seimas was considered on 28 April 2009 without his participation as he was temporarily incapable of work. Article 218 of the Statute of the Seimas (wording of 22 May 1998) was thus violated, under which, during discussions concerning the dismissal of the head of a state institution, the possibility is provided for him to participate in the discussion regarding the dismissal: for up to 30 minutes—to speak, and for up to 30 minutes—to answer the questions.

6. During the sitting of the Seimas, while deciding regarding the dismissal of G. Vilkelis from the office of the Chancellor of the Seimas, one refused to consider the requirement of the Lithuanian Social Democratic Party political group to postpone the consideration of the question. Thus, it is doubtful whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 1 of Article 109 of the Statute of the Seimas (wording of 22 December 1998), according to which, in discussing each issue and prior to the commencement of voting, the debate on the issue may be postponed to the next sitting if a political group so requests and the request is supported by at least one-third of the Members of the Seimas present at the sitting, or if an opposition political group so requests and the request is supported by at least one-fifth of the Members of the Seimas present at the sitting.

7. The doubts regarding the compliance of Seimas resolution No. XI-234 of 28 April 2009 with the aforementioned provisions of the Constitution, the Law on the State Service and the Statute of the Seimas imply in themselves the doubt also regarding the compliance of this resolution of the Seimas with the constitutional principle of a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Ona Buišienė, senior adviser of the Public Law Unit of the Legal Department of the Office of the Seimas, wherein it is maintained that Seimas resolution No. XI-234 of 28 April 2009 impugned in the constitutional justice case at issue is not in conflict with the Constitution, the Law on the State Service and the Statute of the Seimas. The position of the representative of the Seimas is substantiated by the following arguments.

1. The candidature of the Chancellor of the Seimas is chosen and submitted to the Seimas for consideration by the Speaker of the Seimas, i.e. the head of the Seimas—a representative political institution. The entirety of the procedures of submission of the candidature of the Chancellor of the Seimas to the Seimas, its consideration and appointment to office show that the peculiarities of the status of the Chancellor of the Seimas are typical of the head of a state establishment, who is appointed to office on the ground of political (personal) trust. The Chancellor of the Seimas, while taking into account the particularity of functions implemented by the establishment headed by him and the character of his powers, has to enjoy the confidence of the Seimas as from the moment of appointing him to office until the expiry of his powers. Provided that no confidence in the Chancellor of the Seimas exists, it is not possible that the consequences specified in Article 75 of the Constitution and Item 7 of Paragraph 1 of Article 44 of the Law on the State Service—dismissal from office—would not appear. While taking account of that, Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Article 75 of the Constitution, the constitutional principle of a state under the rule of law, Item 7 of Paragraph 1 (wording of 7 June 2007) and Paragraphs 2 and 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service.

2. Under the provision of Paragraph 2 of Article 31 of the Statute of the Seimas, the Chancellor of the Seimas is, in the manner prescribed by law, appointed to office for the period of five years and dismissed from office by the Seimas on the proposal of the Speaker of the Seimas. The procedures of dismissal from office are regulated in Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998): “Proposals to dismiss a Seimas official or a head of a state institution who is appointed by the Seimas, with the exception of cases of impeachment proceedings as provided for in the Constitution, must be considered when they are presented by a reasoned letter from the Board of the Seimas, a committee, or at least one-fifth of the Members of the Seimas.” The Speaker of the Seimas ex officio is the head of the Seimas (Item 1 of Paragraph 1 of Article 29 of the Statute of the Seimas), a member of the Board of the Seimas, he convenes and presides over the meetings of the Board of the Seimas (Paragraph 1 of Article 33 of the Statute of the Seimas). A systemic analysis of the provisions of Paragraph 2 of Article 27, Item 1 of Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Statute of the Seimas leads to a conclusion that, while implementing the decision adopted by the Board of the Seimas whereby the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” was included into the agenda of non-prescheduled plenary sittings of 28 April 2009, the Speaker of the Seimas had a duty to submit the draft resolution to the Seimas namely during this sitting of the Seimas. Therefore, Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998).

3. The provision of Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998) implies the duty of the Seimas to inform the head (official) of the state establishment properly that during the sitting of the Seimas the question of his dismissal from office will be considered and to ensure that during the said sitting he should be granted the floor, could provide explanations and answer questions of the Members of the Seimas, as well as correspondingly to ensure the right of the head (official) of the state establishment to participate in the sitting of the Seimas, to provide explanations and to answer questions of the Members of the Seimas. The head (official) of the state establishment appointed (elected) by the Seimas must enjoy his right to participate in the sitting of the Seimas in a fair manner, he must make efforts that, while considering the question of his dismissal from office, his explanations would be heard, that he could answer questions of the Members of the Seimas so that the Seimas could adopt a corresponding decision. If there are serious reasons (illness, force majeure, etc.) due to which the head (official) of the state establishment, the question of whose dismissal from office is considered in the sitting of the Seimas, is not able to participate in that sitting, he must inform the Seimas about his intention not to participate and request the Seimas to consider the question of his dismissal from office in another sitting of the Seimas, as well as submit his explanations to the Seimas in writing and take care of his proper representation. Thus, the provision of Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998) may not be construed only grammatically, while making the right of the head (official) of the state establishment to participate in the sitting of the Seimas, when the question of his dismissal from office is considered, absolute, it is not to be interpreted as establishing a condition without fulfilling which it is impossible to initiate the procedure of dismissal of the head of a state establishment from office. This provision does not restrict the Seimas when it adopts a corresponding decision. Thus, there is no ground to state that Seimas resolution No. XI-234 of 28 April 2009 is in conflict with Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998).

4. Paragraph 1 of Article 109 of the Statute of the Seimas (wording of 22 December 1998) imperatively prescribes that a political group of the Seimas may require taking a break in consideration of a question during the sitting of the Seimas. While submitting the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas”, the Lithuanian Social Democratic Party political group issued a statement regarding application to the Seimas Commission for Ethics and Procedures regarding the alleged violations of the Statute of the Seimas and “in order the question could be considered on behalf of the political group” and suggested that a break be taken until the next sitting. The statement of the Social Democratic Party political group that this political group was applying to the Seimas Commission for Ethics and Procedures regarding a possible violation of the Statute of the Seimas and due to that proposed that a break be taken in consideration of the question was of informative nature, it did not comply with the provision of Paragraph 1 of Article 109 of the Statute of the Seimas (wording of 22 December 1998), according to which there must be a requirement from the political group. This statement is related to the implementation of the right of the political group of the Seimas to request for conclusions from the Seimas Commission for Ethics and Procedures regarding the procedural disputes which is provided in Item 4 of Paragraph 1 of Article 78 of the Statute of the Seimas. Thus, while one takes account of the aforesaid, Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 2 of Article 109 of the Statute of the Seimas (wording of 22 December 1998).

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Laima Tuleikienė, Director of the State Service Department under the Ministry of the Interior of the Republic of Lithuania.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests to investigate whether Seimas resolution No. XI-234 of 28 April 2009 whereby G. Vilkelis was dismissed from the office of the Chancellor of the Seimas is not in conflict with the Constitution, the Law on the State Service and the Statute of the Seimas.

2. It is obvious from the material of the constitutional justice case at issue, inter alia from the material of the administrative case considered by the Vilnius Regional Administrative Court, in which it was decided to apply to the Constitutional Court, and from the written explanations of O. Buišienė, the representative of the Seimas, the party concerned, that:

on the proposal of the Speaker of the Seimas, G. Vilkelis was appointed without competition to the office of the Chancellor of the Seimas for five years by the Seimas Resolution (No. X-827) “On Appointing G. Vilkelis as the Chancellor of the Seimas” of 3 October 2006; this resolution was set forth as follows:

The Seimas of the Republic of Lithuania, pursuant to Paragraph 2 of Article 31 of the Statute of the Seimas and taking account of the proposal of the Speaker of the Seimas, decides:

Article 1.

To appoint Gintautas VILKELIS as the Chancellor of the Seimas for five years.

Article 2.

The resolution shall come into force as from 9 October 2006;”

on 27 April 2009, the Speaker of the Seimas Arūnas Valinskas initiated the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas”; this draft resolution was set forth as follows:

The Seimas of the Republic of Lithuania, pursuant to Article 31 of the Statute of the Seimas,

d e c i d e s:

Article 1.

1. To dismiss Gintautas VILKELIS from the office of the Chancellor of the Seimas.

2. The first working day upon termination of the incapacity for work shall be considered as the day of dismissal of Gintautas VILKELIS from the office of the Chancellor of the Seimas.

Article 2.

The resolution shall come into force as from its adoption.”;

the Seimas Sittings Secretariat registered the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat;

on 27 April 2009, the Legal Department of the Office of the Seimas presented the Conclusion (No. XIP-575) “On Draft Resolution of the Seimas ‘On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas’” wherein it noted that the draft was in line with the rules of the juridical technique;

in its sitting of 27 April 2009, the Board of the Seimas considered the question of supplementation of Annex 1 of the decision (No. SV-S-236) of the Board of the Seimas of 24 April 2009, and upon voting “for” by five members of the board and voting “against” by two members of the board, adopted a decision to supplement Annex 1 of the aforementioned decision—to include the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” into the agenda of the non-prescheduled plenary sittings (the minutes (No. SV-P-45) of the Board of the Seimas sitting of 27 April 2009; the Decision (No. SV-S-237) of the Board of the Seimas “On Supplementing Annex 1 of the Decision (No. SV-S-236) of the Board of the Seimas of 24 April 2009” of 27 April 2009);

on 27 April 2009, G. Vilkelis was sent the Letter (No. S-2009-4537) “Regarding Information” in which it was specified that, on 28 April 2008, at 10.10 o’clock, in the sitting of the Seimas, the draft Resolution “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” would be considered; the agenda of the non-prescheduled plenary sittings of the Seimas of 28 April 2009, in which presentation, consideration and adoption of the aforesaid draft resolution (No. XIP-575) of the Seimas was planned, was attached to the letter (the Letter (No. S-2009-4537) “Regarding Information (No. S-2009-4537) of 27 April 2009; the agenda of the non-prescheduled plenary sittings of the Seimas of 28 April 2009 (Tuesday));

G. Vilkelis received the Letter (No. S-2009-4537) “Regarding Information of 27 April 2009 on 27 April 2009, at 15.34 o’clock (the Letter (No. (13,10-13)/136-192) of the Courier Mail Division of JSC “Lietuvos paštas” “On the Delivery of the Postal Item” with an attachment of 5 June 2009);

during the non-prescheduled morning plenary sitting of 28 April 2009, the Seimas considered and by common agreement assented to the agenda of the non-prescheduled plenary sittings of the Seimas of 28 April 2009 (Tuesday) (the minutes (No. SPP-67) of the non-prescheduled morning plenary sitting of the II (spring) session);

the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” was considered during the non-prescheduled plenary sitting of the Seimas of 28 April 2009 (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009; the shorthand record (No. 68) of the non-prescheduled evening plenary sitting of the Seimas of 28 April 2009);

the Annex (No. 410-g-55), in which the deficiencies of the activity of the Office of the Seimas and the Chancellor of the Seimas were described, was attached to the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” of 28 April 2009; it was distributed among the Members of the Seimas who participated in the sitting (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009); in the material of the constitutional justice case at issue there are no data that the aforementioned annex to the draft resolution was hand-delivered to G. Vilkelis;

in the sitting of the Seimas the Speaker of the Seimas Arūnas Valinskas set forth certain reasons for dismissal of G. Vilkelis from office (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009);

while considering the question of dismissal of G. Vilkelis from office during the sitting of the Seimas, Zigmas Balčytis, the Chair of the Lithuanian Social Democratic Party Political Group (LSDPPG), noted that regarding a possible violation of the Statute of the Seimas he would apply to the Seimas Commission for Ethics and Procedures and, on behalf of the political group, suggested that a break be taken until another sitting; the chairperson of the sitting stated that it was a special procedure and one was not allowed to ask for a break (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009);

from 24 February 2009 until 28 May 2009 G. Vilkelis was temporarily incapable of work due to an accident on his way from work, therefore, he did not participate in the non-prescheduled plenary sitting of the Seimas on 28 April 2009 (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009; certificates of incapacity of work Nos. 5233617, 5730081, 5730329);

it is obvious from the speeches of the Members of the Seimas during the sitting of the Seimas that the Members of the Seimas were informed that at the time of consideration of the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” G. Vilkelis was temporarily incapable of work (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009);

while considering the draft Resolution of the Seimas “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” of 28 April 2009 during the sitting of the Seimas, it was emphasised that G. Vilkelis must be dismissed according to the procedure of dismissal of an official established in Article 218 of the Statute of the Seimas (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009);

by the first voting by secret ballot the Seimas did not assent to the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas”; the results of the secret ballot were as follows: ballot papers issued—89, ballot papers found—89, valid ballot papers—82, invalid ballot papers—7, “to dismiss”—70, “not to dismiss”—12 (the minutes (No. SPP-67) of the non-prescheduled morning plenary sitting of the II (spring) session);

during the non-prescheduled morning plenary sitting of 28 April 2009 the chairperson of the vote-tellers’ group Vida Marija Čigriejienė announced the statement of a Member of the Seimas regarding a spoilt ballot paper; it was decided to repeat the voting by secret ballot regarding the dismissal of G. Vilkelis from the office of the Chancellor of the Seimas (the minutes (No. SPP-67) of the non-prescheduled morning plenary sitting of the II (spring) session);

during the non-prescheduled evening plenary sitting of 28 April 2009, after the repeat voting by secret ballot regarding the dismissal of G. Vilkelis from the office of the Chancellor of the Seimas, it was assented to the proposal to dismiss him; the results of the voting were as follows: ballot papers issued—90, ballot papers found—90, valid ballot papers—85, invalid ballot papers—5, “to dismiss”—76, “not to dismiss”—9 (the minutes (No. SPP-68) of the non-prescheduled evening plenary sitting of the II (spring) session).

II

The Vilnius Regional Administrative Court, the petitioner, impugns the compliance of Seimas resolution No. XI-234 of 28 April 2009 with inter alia Article 75 of the Constitution and the constitutional principle of a state under the rule of law.

1. Article 75 of the Constitution prescribes: “Officials appointed or elected by the Seimas, with the exception of persons specified in Article 74 of the Constitution, shall be dismissed from office when the Seimas expresses no-confidence in them by majority vote of all the Members of the Seimas”.

In its ruling of 24 January 2003, the Constitutional Court held the following: this article of the Constitution establishes the right of the Seimas to dismiss those officials from office, who were appointed or elected by the Seimas, with the exception of persons specified in Article 74 of the Constitution; this is done by following a special parliamentary procedure, which is expression of no-confidence; the no-confidence is expressed by majority vote of all the Members of the Seimas; the institute of expression of no-confidence is not only one of the ways of the parliamentary control carried out by the Seimas, but also an important guarantee of the activity of the official appointed or elected by the Seimas, since such an official, if there are no grounds due to which he may not hold office on the whole, may be dismissed from office prior to the expiry of the term of his powers when more than half of all members of the Seimas vote in favour of no-confidence; the expression of no-confidence is the ground for dismissal of an official appointed or elected by the Seimas from office, which must be linked with the assessment of the activity of the official, therefore, the regulation of the procedure of the parliamentary expression of no-confidence must be such so as to ensure a proper legal process, which inter alia means that an official against whom no-confidence is expressed should have a real opportunity to present to the Seimas his explanations and to answer, at the Seimas sitting, all the arguments upon which the no-confidence is grounded.

In the context of the constitutional justice case at issue it needs to be noted that Article 75 of the Constitution establishes one of the grounds for dismissal of an official appointed or elected by the Seimas from office—dismissal upon expression of no-confidence. The officials appointed or elected by the Seimas may be dismissed from office also on other grounds established by law.

2. The Vilnius Regional Administrative Court, the petitioner, impugns the compliance of Seimas resolution No. XI-234 of 28 April 2009 with inter alia the procedure of dismissal of the head of a state institution appointed by the Seimas from office which is consolidated in the Statute of the Seimas.

It needs to be noted that, under Paragraph 1 of Article 69 of the Constitution, laws shall be adopted at the Seimas according to the procedure established by law. The Constitutional Court has held more than once that the provision of Paragraph 1 of Article 69 of the Constitution is related to the provision of Article 76 of the Constitution that the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas which has the power of law. While construing both these provisions together, the Constitutional Court has held that they mean that the legislative procedure may be regulated by the Statute of the Seimas (the Constitutional Court’s rulings of 28 June 2001, 14 January 2002 and 19 January 2005), and that the duty of the Seimas to follow the legislation rules defined by the Statute of the Seimas not only may but also should be treated as a constitutional duty because it is preconditioned by the provision established in Paragraph 1 of Article 69 of the Constitution (the Constitutional Court’s rulings of 8 November 1993, 18 October 2000, 14 January 2002 and 19 January 2005).

In the context of the constitutional justice case at issue it needs to be noted that not only laws but also sub-statutory legal acts adopted by the Seimas must be adopted by following the rules of adoption of the legal acts defined in the Statute of the Seimas.

3. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The constitutional principle of a state under the rule of law must be followed both in law-making and implementation of law.

The principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts. In its acts the Constitutional Court has held more than once that the said constitutional principle does not permit that sub-statutory legal acts establish any such legal regulation that would compete with the legal regulation established in the law, and that it demands that sub-statutory legal acts be not in conflict with laws, constitutional laws and the Constitution, that sub-statutory legal acts must be adopted on the basis of laws, that a sub-statutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-time (ad hoc) application or of permanent validity (inter alia the Constitutional Court’s rulings of 6 September 2007, 9 March 2010 and 18 April 2012).

In the context of the constitutional justice case at issue it needs to be noted that the fact that while adopting sub-statutory legal acts the Seimas does not comply with the Constitution and the Statute of the Seimas means that also the constitutional principle of a state under the rule of law which implies a hierarchy of legal acts is violated.

III

1. On 28 April 2009, the Seimas adopted the Resolution (No. XI-234) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” (which came into force on the same day) which prescribed:

The Seimas of the Republic of Lithuania, pursuant to Article 31 of the Statute of the Seimas, decides:

Article 1.

1. To dismiss Gintautas VILKELIS from the office of the Chancellor of the Seimas.

2. The first working day upon termination of the incapacity for work shall be considered as the day of dismissal of Gintautas VILKELIS from the office of the Chancellor of the Seimas.

Article 2.

The resolution shall come into force as from its adoption.”

It needs to be noted that Seimas resolution No. XI-234 of 28 April 2009 is a legal act of individual character of one-time (ad hoc) application upon the adoption whereof G. Vilkelis lost the office of the Chancellor of the Seimas on the first day upon termination of his incapacity of work.

It also needs to be noted that in Seimas resolution No. XI-234 of 28 April 2009 the legal ground of dismissal of G. Vilkelis from the office of the Chancellor of the Seimas is not specified.

In the written explanations of O. Buišienė, the representative of the Seimas, the party concerned, it is specified that G. Vilkelis was dismissed from the office of the Chancellor of the Seimas on the ground of Item 7 (wording of 7 June 2007) of Paragraph 1 of Article 44 of the Law on the State Service, as the head of the establishment admitted to office on the ground of political (personal) confidence who has lost the confidence of the state politician or the collegial state institution that had admitted him. In the ruling of the Vilnius Regional Administrative Court, whereby it is applied to the Constitutional Court, a conclusion is drawn that there is no ground to state that the Chancellor of the Seimas is the head of an establishment admitted to office on the ground of political (personal) confidence.

2. In the constitutional justice case at issue, while investigating the compliance of Seimas resolution No. XI-234 of 28 April 2009, whereby G. Vilkelis was dismissed from the office of the Chancellor of the Seimas, with the Constitution, the Law on the State Service and the Statute of the Seimas, it is important to elucidate the procedure for appointing and dismissing the Chancellor of the Seimas from office. The main questions related to appointing and dismissing the Chancellor of the Seimas from office are regulated in the Statute of the Seimas and in the Law on the State Service.

3. At the time when the Seimas Resolution (No. X-827) “On Appointing G. Vilkelis as the Chancellor of the Seimas” of 3 October 2006, whereby G. Vilkelis was appointed to the office of the Chancellor of the Seimas, was adopted, the procedure of appointment of the Chancellor of the Seimas to office was regulated inter alia by Paragraphs 1 and 2 of Article 31 of the Statute of the Seimas and Paragraph 2 of Article 10 and Article 13 of the Law on the State Service.

3.1. Paragraphs 1 and 2 of Article 31 “The Chancellor of the Seimas” (wording of 10 October 2000) (Paragraph 2 thereof is set forth in the wording of 18 December 2001) prescribed:

1. The Chancellor of the Seimas shall be a state servant—head of the establishment who shall be responsible and accountable to the Seimas and the Board of the Seimas.

2. The Chancellor of the Seimas shall be the head of the Office of the Seimas. The Chancellor of the Seimas shall, in the manner prescribed by law, be appointed to office for the period of 5 years, and dismissed from office by the Seimas on the recommendation of the Speaker of the Seimas.”

Thus, the Chancellor of the Seimas is the head of an establishment—the Office of the Seimas—who is, in the manner prescribed by law, appointed to office for the period of 5 years by the Seimas on the recommendation of the Speaker of the Seimas.

3.2. The procedure for admitting the heads of the establishment to office is regulated by the Law on the State Service.

Paragraph 2 (wording of 22 December 2005) of Article 10 of the Law on the State Service inter alia prescribes:

2. Heads of establishments shall be admitted:

1) as regards institutions and establishments accountable to the Seimas—by institutions and persons <…> authorised by the law.”

In this context it needs to be noted that, according to the Statute of the Seimas, which, under Article 76 of the Constitution has the power of a law, the Chancellor of the Seimas is appointed to office by the Seimas on the recommendation of the Speaker of the Seimas.

Article 13 “Recruitment of Heads of Establishments” (wording of 22 December 2005) of the Law on the State Service prescribes:

1. Heads of establishments shall be recruited through competition, without competition or on the basis of political (personal) confidence in the cases provided for in the laws.

2. A person recruited as head of an establishment through competition shall be examined in writing (a test) and orally (an interview). The examination shall be taken in the state language—the Lithuanian language. In the course of an interview, the ability of a person to perform the functions specified in the job description of the state servant, as well as knowing of other languages, obligatory in order to perform such functions, shall be assessed.

3. One may be admitted to the office of the head of an establishment (save the head of an establishment admitted to office on the ground of political (personal) confidence or for the term established by law) without competition in cases specified in Paragraphs 2 and 3 of Article 16 and Paragraph 3 of Article 43 of this Law.”

Thus, under the legal regulation established in Article 13 (wording of 22 December 2005) of the Law on the State Service, one may be admitted to the office of the head of an establishment through competition or without competition.

3.2.1. As mentioned before, under Paragraph 2 of Article 13 of the Law on the State Service, a person recruited as head of an establishment through competition shall be examined in writing (a test) and orally (an interview). It has been mentioned that, under Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas, the Chancellor of the Seimas is, in the manner prescribed by law, appointed to office for the period of five years and dismissed from office by the Seimas on the proposal of the Speaker of the Seimas. It needs to be noted that neither the Statute of the Seimas, inter alia Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas which regulates inter alia the procedure of appointment of the Chancellor of the Seimas, nor any laws prescribe that the Chancellor of the Seimas is admitted to office through competition.

Consequently, the Chancellor of the Seimas is not the head of an establishment admitted to office through competition.

3.2.2. Under the legal regulation established in Article 13 (wording of 22 December 2005) of the Law on the State Service, one is admitted to the office of the head of an establishment without competition in cases specified in Paragraphs 2 and 3 of Article 16 and Paragraph 3 of Article 43 of the Law on the State Service, on the ground of political (personal) confidence or for the term established by law.

Paragraph 2 (wording of 22 December 2005) and Paragraph 3 (wording of 22 December 2005) of Article 16 “Rights of the State Servants” of the Law on the State Service prescribe:

2. The persons shall have the right to restore his status of a state servant—in accordance with the procedure established by the Government, to be reinstated in the office formerly occupied by him or, if no such possibility exists, to be appointed to another office of the career state servant in either the same or a lower category in either the same or another state or municipal institution or establishment, and the right to restore the status of the head of the establishment (with the exception of the head of an establishment, appointed to office on the ground of political (personal) confidence or for the term established by law), also, in accordance with the procedure established by the Government, the right to be reinstated in the office formerly occupied by him or, if no such possibility exists, to be appointed to another office of the head of an establishment in either the same or a lower category in either the same or another state or municipal institution or establishment, if:

1) due to the appointment or election to the office of a state politician, a Member of the European Parliament, head of the state institution or establishment appointed by the Seimas or the President of the Republic, other official appointed by the Seimas or the President of the Republic, chairperson of the state (permanent) commission or council, his deputy or a member appointed by the Seimas or the President of the Republic, as well as chairperson or a member of a commission, council or fund established according to a special law, a state servant of political (personal) confidence and head of an establishment having the status of a state servant admitted to office for the term established by law, they resigned from office of the career state servant or head of an establishment of their own free will—within 3 months after their appointment (election) to this office or upon discontinuation of their powers otherwise; such a right shall be denied to the persons whose powers to take the office specified in this item discontinued due to the reasons linked to misfeasance of duties or unsatisfactory performance results or for misconduct in office;

2) due to their work in the sphere of public administration in an international organisation or institution, in an institution or body of the European Union, an institution established by the European Commission or Council, an organisation (consortium) established commonly by the European Commission and Member States of the European Union, a civil international operation or mission (hereinafter referred to as the international institution) or in an institution of a foreign state, resigned from office of a career state servant or head of an establishment of their own free will—within 3 months as from the end of their work in an international institution or an institution of a foreign state; such a right shall be denied to the persons who were dismissed from the international institution or an institution of a foreign state due to the reasons linked to misfeasance of duties or unsatisfactory performance results or for misconduct in office;

3) due to their own leave together with the spouse who was admitted, moved or elected to work abroad (with the exception of the spouse who has the status of a diplomat) resigned from office of a career state servant or head of an establishment of their own free will—within 3 months as from the end of transfer of the spouse or within 3 month from the day of submission of a request to restore the status of a career state servant or head of an institution provided that such a request is submitted prior to the end of the period for transfer of the spouse.

3. The spouses of the diplomats resigned from office of a career state servant or head of an institution of their own free will due to their leave together with the spouse appointed to work abroad shall have the right to restore their status of a state servant, in accordance with the procedure established by the Government, to be reinstated in the office formerly occupied by them or, if no such possibility exists, to be appointed to another office of a career state servant in the same category in either the same or another state or municipal institution or establishment, and the right to restore the status of the head of an establishment (with the exception of the head of an establishment, appointed to office on the ground of political (personal) confidence or for the term established by law), also, in accordance with the procedure established by the Government, to be reinstated in the office formerly occupied by them or, if no such possibility exists, to be appointed to another office of the head of an establishment in either the same or another state or municipal institution or establishment. These persons shall have the right to restore the status of a career state servant or head of an establishment within 3 months as from the end of transfer of their spouse or within 3 month from the day of submission of a request to restore the status of a career state servant or head of an establishment provided that such a request is submitted prior to the end of the period for transfer of the spouse.”

Paragraph 3 (wording of 22 December 2005) of Article 43 “Other Guarantees” of the Law on the State Service prescribed: “A former head of an establishment (with the exception of the head of an establishment appointed to office on the ground of political (personal) confidence or for the term of office established by law, as well as the head of an establishment who has reached the age of 62 years and 6 months) dismissed from office because his position was cancelled shall be offered, in accordance with the procedure established by the Government, a vacant position of the head of an establishment (with the exception of the head of an establishment, appointed to office on the ground of political (personal) confidence or for the term established by law) in either the same or a lower category within 6 months from the day of his dismissal provided that the said person meets the general requirements set for the person admitted to the office of the state servant, as well as special requirements established in the description of the position offered to him. The persons aspiring to be admitted to the office of the head of an establishment may be admitted to the said office upon the decision of the person admitting to the office of the state servant. Provided that there is no possibility, in the case specified in this paragraph, to offer the former head of an establishment the office of the head of an establishment, he shall be offered a vacant position of a career state servant in either the same or a lower category within 6 months from the day of his dismissal in accordance with the procedure established by the Government. This person must be admitted to the office of the career state servant, provided that he meets the general requirements set for the person admitted to the office of the state servant, as well as special requirements established in the description of the position offered to him.”

Thus, Paragraph 2 (wording of 22 December 2005) and Paragraph 3 (wording of 22 December 2005) of Article 16 of the Law on the State Service regulate the right to restore inter alia the status of the head of an establishment. Paragraph 3 (wording of 22 December 2005) of Article 43 of this Law establishes the guarantees for the former head of an establishment who was dismissed from office due to cancelation of his position.

It needs to be noted that, under the legal regulation established in Paragraphs 2 and 3 of Article 16 and Paragraph 3 of Article 43 of the Law on the State Service, the right to restore the status of the head of an establishment, as well as the right to return to the office of the head of an establishment in either the same or a lower category, is enjoyed by the head of an establishment who is admitted to office through competition. The head of an establishment who is admitted to office on the ground of political (personal) confidence or for the term established by law does not enjoy such a right.

It has been mentioned that the Chancellor of the Seimas is not the head of an establishment admitted to office through competition.

Thus, the Chancellor of the Seimas is also not such a head of the establishment who may be admitted to this office without competition, on the grounds specified in Paragraphs 2 and 3 of Article 16 and Paragraph 3 of Article 43 of the Law on the State Service.

3.2.3. Admission to the office of state servants on the ground of political (personal) confidence is regulated in Paragraph 3 of Article 10 and Article 12 of the Law on the State Service.

Article 12 “Admission to Office of State Servants on the Ground of Political (Personal) Confidence” (wording of 18 December 2003) of the Law on the State Service prescribes: “One shall be admitted to the office of the state servants of political (personal) confidence without competition on the basis of a choice made by the state politician or collegial institution.”

Article 10 “Admission to the Office of the State Servants” (wording of 18 December 2003) of the Law on the State Service inter alia prescribes:

3. State servants of political (personal) confidence shall be admitted:

1) as regards state servants of political (personal) confidence of the Speaker of the Seimas and Deputy Speakers of the Seimas—by the Speaker of the Seimas, Deputy Speakers of the Seimas or persons authorised by them <…>.”

It needs to be noted that, as mentioned before, under the legal regulation established in the Statute of the Seimas, the Chancellor of the Seimas is appointed to office not by the Speaker of the Seimas, but by the Seimas; the Speaker of the Seimas only nominates a candidate for the Chancellor of the Seimas to the Seimas. It also needs to be noted that neither the Statute of the Seimas, nor the Law on the State Service designates the Chancellor of the Seimas as a state servant of political (personal) confidence.

Thus, the Chancellor of the Seimas is not the head of an establishment, admitted to office without competition on the ground of political (personal) confidence.

3.3. While summarising the legal regulation regulating the procedure of appointment of the Chancellor of the Seimas to office in the context of the constitutional justice case at issue, it needs to be noted that the Chancellor of the Seimas is admitted to the office of the Chancellor of the Seimas without competition for the term established in the Statute of the Seimas, i.e. for five years. He is not admitted to office on the ground of political (personal) confidence.

4. As mentioned before, under Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas, the Chancellor of the Seimas—the head of the Office of the Seimas—is, in the manner prescribed by law, dismissed from office by the Seimas on the proposal of the Speaker of the Seimas.

It needs to be noted that Paragraph 2 of Article 31 of the Statute of the Seimas does not establish the grounds for dismissal of the Chancellor of the Seimas from office. At the time when Seimas resolution No. XI-234 of 28 April 2009 was adopted which is impugned in the constitutional justice case at issue, the grounds for dismissal of the head of an establishment appointed by the Seimas from office were regulated inter alia by Article 44 of the Law on the State Service. Under Paragraph 3 (wording of 7 June 2007) of Article 4 of the said law, this law is applied with regard to the Chancellor of the Seimas together with the rules provided in the Statute of the Seimas.

4.1. Article 44 “Dismissal of the State Servants from Office” (wording of 7 June 2007) of the Law on the State Service prescribes:

1. The state servant shall be dismissed from office, when:

1) he resigns at his own request;

2) a municipal controller, a state servant of the municipal controller’s office or a state servant of the municipal administration assumes the office of a member of the council of the same municipality, or a county governor, his deputy or a representative of the Government assumes the office of a member of the council of the municipality;

3) he loses citizenship of the Republic of Lithuania;

4) he has not completed the education necessary to occupy his post within the period set in the Law Implementing the Law Amending the Law on the State Service;

5) the term of office of the head of an institution expires in the cases provided for in the laws;

6) the term of appointment of an acting state servant or a state servant reaches the age of 65 years, or the term of extension of his service expires, or the powers of the state politician or collegiate state institution that has recruited a state servant of political (personal) confidence to office, expire;

7) the state servant of political (personal) confidence or the head of an establishment admitted to office on the ground of political (personal) confidence loses the confidence of the state politician or collegiate state institution that has admitted him to office, or the term of his appointment expires;

8) it emerges that, when entering the state service, he submitted falsified documents or concealed or presented false data which made him not eligible for the state service;

9) the state service position is cancelled;

10) according to the proposal of the evaluation commission a decision to dismiss a state servant from office is adopted;

11) a state servant dismissed from mandatory initial military service or alternative national defence service does not return to the position formerly held by him in the state service for over 2 months;

12) a state servant is reinstated by a court decision in the office formerly held by him or it emerges that the requirements set out in this Law were violated when admitting a state servant and the violations cannot be eliminated;

13) it is prescribed under the procedure established by the laws that a state servant is unable to perform his duties due to incapacity or loss of capacity for work;

14) in the manner prescribed by law, the state servant is deprived of the special right related to the performance of his direct duties;

15) a disciplinary penalty, dismissal from office for gross violations specified in Items 1–4 of Paragraph 6 of Article 29 of this Law, is imposed;

16) a court sentence imposing a penalty upon him for committing a serious or grave crime or a criminal deed against the state service or the public interest, or a criminal deed of corruptive nature, or a penalty barring him from performing his duties comes into effect;

17) a career state servant, upon evaluation of his service performance as unsatisfactory, does not agree to be transferred to the office of a career state servant in a lower category;

18) a disciplinary penalty, dismissal from office for misconduct in office not specified in Item 15 of Paragraph 1 of this article, is imposed.

2. A state servant, who is absent from work due to temporary incapacity for work for more than 120 calendar days in succession or more than 140 days during the last twelve months, may be dismissed from office by a decision of the person who admitted him. These periods do not include the time during which the state servant received the sickness social insurance benefit for nursing sick family members and sickness benefit to those removed from the job due to the outbreak of infectious diseases or epidemics.

3. A state servant of political (personal) confidence shall be dismissed from office on the last day of the powers of the state politician who has admitted him to office or at the first meeting of a newly formed collegiate state institution.

4. A state servant intending to resign from the state service at his own request must notify the appointing authority thereof not later than 14 calendar days in advance. Upon the agreement of the person who admitted the state servant to office the state servant may be dismissed earlier as well. The state servant has the right to revoke his request regarding resignation not later than within 3 working days from the day of submission of such request. Later he may revoke his request only upon the agreement of the person who admitted him to office.

5. A state servant may not be dismissed from office during his temporary incapacity for work and during his leave, except for the cases specified in Items 1, 5, 6, 7, 8, 9, 13, 14 and 16 of Paragraph 1 as well as in Paragraph 2 of this Article.

6. A pregnant state servant as well as a state servant during his/her leave to care for a child (children) under three years of age may not be dismissed from office on the grounds specified in Items 4, 9 (except for the cases where a state or municipal institution or establishment is liquidated), 10, 12 and 15 of Paragraph 1 of this Article.

7. Disputes over the dismissal of a state servant shall be examined in accordance with the procedure laid down in the Law on Administrative Proceedings.”

Thus, Article 44 of the Law on the State Service inter alia prescribes general grounds for dismissal of state servants from office which are applied also for heads of establishments; the head of an establishment may be dismissed from office during his temporary incapacity for work and during his leave only in the cases specified in Items 1, 5, 6, 7, 8, 9, 13, 14 and 16 of Paragraph 1 as well as in Paragraph 2 of this Article 44 of the Law on the State Service.

4.2. The Chancellor of the Seimas is the head of an establishment who is appointed by the Seimas, therefore, for his dismissal the procedure of dismissal of the heads of the state institutions established in the Thirty-fifth Chapter “Dismissal of Seimas Officials and Heads of State Institutions” of the Statute of the Seimas (wording of 22 December 1998) is applied.

Article 217 “Proposal to Dismiss an Official” of the Thirty-fifth Section “Dismissal of Seimas Officials and Heads of State Institutions” of the Statute of the Seimas (wording of 22 December 1998) prescribes:

1. Proposals to dismiss a Seimas official or a head of a state institution who is appointed by the Seimas, with the exception of cases of impeachment proceedings as provided for in the Constitution, must be considered when they are presented by a reasoned letter from the Board of the Seimas, a committee of the Seimas, or at least one-fifth of the Members of the Seimas. A committee may not propose to dismiss the chair of another committee.

2. Motions for the dismissal of an official shall be filed with the Speaker of the Seimas; motions for dismissal of the Speaker of the Seimas shall be filed with the First Deputy Speaker of the Seimas. The Seimas may not consider an issue related to no-confidence in the Speaker of the Seimas if the latter is temporarily deputising for the President of the Republic.

3. Such motions must be announced at the next sitting of the Seimas.

4. The Members of the Seimas may not request to dismiss the same official more than once during the same session.”

Thus, Article 217 of the Statute of the Seimas (wording of 22 December 1998) inter alia enumerates the subjects who have the right to reasonably propose to dismiss the head of a state institution which is appointed by the Seimas.

It has been mentioned that, under Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas, the Chancellor of the Seimas is, in the manner prescribed by law, dismissed from office by the Seimas on the proposal of the Speaker of the Seimas.

Thus, the proposal to dismiss the Chancellor of the Seimas from office may be submitted to the Seimas by the Speaker of the Seimas (Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas), as well as by the Board of the Seimas, a committee of the Seimas or not less than 1/5 Members of the Seimas (Article 217 of the Statute of the Seimas (wording of 22 December 1998)).

4.3. Article 218 “Procedure of Dismissal of an Official” of Chapter Thirty-five “Dismissal of Seimas Officials and Heads of State Institutions” of the Statute of the Seimas (wording of 22 December 1998) prescribes:

1. The official of the Seimas whose dismissal is under discussion may not preside over that sitting.

2. During discussions concerning the dismissal of an official of the Seimas or head of a state institution, the first person to be given the floor shall be the representative of the initiators of dismissal (for up to ten minutes); thereafter, the floor shall be given to the official whose dismissal is debated on (for up to 30 minutes). The latter shall then be given up to another 30 minutes to answer questions.

3. The discussion shall subsequently be continued according to the general procedure.

4. A decision concerning the dismissal of Seimas officials or heads of state institutions shall be adopted by secret ballot with a majority of votes cast by more than half of all Members of the Seimas.”

Thus, Article 218 of the Statute of the Seimas (wording of 22 May 1998) establishes the legal regulation where a possibility to participate in the discussion regarding the dismissal is provided inter alia for the head of a state institution the question of whose dismissal is being considered: for up to 30 minutes—to speak, and for up to 30 minutes—to answer the questions.

4.4. While construing the legal regulation consolidated in Paragraph 2 of Article 31 of the Statute of the Seimas together with the provisions of Articles 217 and 218 of the Statute of the Seimas and Article 44 of the Law on the State Service, in the context of the constitutional justice case at issue it needs to be noted that:

the proposal for the Seimas to dismiss the Chancellor of the Seimas from office may be submitted by the Speaker of the Seimas, the Board of the Seimas, a committee of the Seimas or not less than 1/5 of the Members of the Seimas;

the Chancellor of the Seimas is the head of an establishment and he is admitted to office without competition for the term established in the Statute of the Seimas, i.e. for five years, thus, he may not be dismissed from office on the ground established in Item 7 of Paragraph 1 of Article 44 of the Law on the State Service as the head of an establishment admitted on the ground of political (personal) confidence, who has lost the confidence of the state politician or the collegial state institution or the municipal institution that had admitted him; the Chancellor of the Seimas may be dismissed from office on one of the grounds established in Paragraphs 1 and 2 of Article 44 of the Law on the State Service;

the Chancellor of the Seimas is the head of the state institution who is appointed by the Seimas, thus for his dismissal one applies the procedure of dismissal established in Article 218 of the Statute of the Seimas, under which the person the question of whose dismissal is considered, must have a possibility to participate in the discussion regarding the dismissal: for up to 30 minutes—to speak, and for up to 30 minutes—to answer the questions.

5. Alongside, it needs to be noted that regulation of appointment and dismissal of the Chancellor of the Seimas is not clear and harmonious. It has been mentioned that under Paragraph 2 (wording of 18 December 2001) of Article 31 of the Statute of the Seimas, the Chancellor of the Seimas is, in the manner prescribed by law, appointed and dismissed from office by the Seimas; under Paragraph 3 (wording of 7 June 2007) of Article 4 of the Law on the State Service, the Law on the State Service shall apply to the Chancellor of the Seimas together with the rules provided in the Statute of the Seimas. The Law on the State Service establishes only the general requirements for admission to the office of the state servants: education, work experience, etc. The Statute of the Seimas does not establish any requirements for the candidate to the office of the Chancellor of the Seimas. Neither the Statute of the Seimas, nor laws prescribe a clear procedure of dismissal of the Chancellor of the Seimas from office. Such a legal regulation create preconditions to construe the status of the Chancellor of the Seimas and the procedure of his dismissal from office in a varied manner.

The Constitutional Court has held more than once that one of the essential elements of the principle of a state under the rule of law established in the Constitution is legal certainty and legal clarity. The imperative of legal certainty and legal clarity implies certain obligatory requirements for legal regulation: it must be clear and harmonious, legal norms must be formulated precisely, they may not contain ambiguities (inter alia the Constitutional Court’s rulings of 24 December 2008 and 22 June 2009, the decision of 20 April 2010 and the ruling of 13 May 2010).

In its ruling of 13 May 2010, the Constitutional Court especially emphasised that the legislator, while regulating relations connected with appointment and dismissal from office of persons, inter alia state officials, must establish clear and harmonious legal regulation so that it would not be construed in a varied manner.

A requirement stems from the Constitution, inter alia the constitutional principles of a state under the rule of law and responsible governance, to establish clear requirements for the candidate to the office of the Chancellor of the Seimas, inter alia those of education and impeccable reputation.

Thus, the legal regulation of appointment and dismissal of the Chancellor of the Seimas is to be amended and specified so that clear requirements for the candidate to the Chancellor of the Seimas and clear, not ambiguous procedure of his dismissal from office would be established.

IV

On the compliance of the Resolution (No. XI-234) of the Seimas “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” of 28 April 2009 with Article 75 of the Constitution, with the constitutional principle of a state under the rule of law, Paragraph 1 (wording of 7 June 2007), Paragraph 2 (wording of 22 December 2005) and Paragraph 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service and with Paragraph 1 of Article 109, Paragraph 1 of Article 217 and Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998).

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests to investigate whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Article 75 of the Constitution, with the constitutional principle of a state under the rule of law, Paragraph 1 (wording of 7 June 2007), Paragraph 2 (wording of 22 December 2005) and Paragraph 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service and with Paragraph 1 of Article 109, Paragraph 1 of Article 217 and Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998).

2. According to the petitioner, the question of dismissal of G. Vilkelis from the office of the Chancellor of the Seimas was considered during the sitting on 28 April 2009 without his participation. Thus, Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998) was violated.

3. It has been mentioned that the Chancellor of the Seimas is the head of a state institution who is appointed by the Seimas, thus for his dismissal one applies the procedure of dismissal established in Article 218 of the Statute of the Seimas, under which the person the question of whose dismissal is considered, must have a possibility to participate in the discussion regarding the dismissal: for up to 30 minutes—to speak, and for up to 30 minutes—to answer the questions, i.e. he must have a real possibility to provide the Seimas with his explanations and to answer questions of the Members of the Seimas.

4. While deciding whether by dismissing G. Vilkelis from office one did not violate the procedure of dismissal of an official appointed by the Seimas from office established in Article 218 of the Statute of the Seimas (wording of 22 December 1998), whether the requirements of the proper legal proceedings were heeded, it is important to take account of these aforementioned circumstances:

on 27 April 2009, the Letter (No. S-2009-4537) “Regarding Information” was sent to G. Vilkelis, in which it was specified that, on 28 April 2008, at 10.10 o’clock, in the sitting of the Seimas, the draft resolution of the Seimas “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” would be considered; the agenda of the non-prescheduled plenary sessions of 28 April 2009 was attached to the letter in which the submission, consideration and adoption of the aforementioned resolution (No. XIP-575) of the Seimas were provided;

G. Vilkelis received the Letter (No. S-2009-4537) “Regarding Information” of 27 April 2009 on 27 April 2009, at 15.34 o’clock;

the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” was considered during the non-prescheduled plenary sitting of the Seimas of 28 April 2009;

the Annex (No. 410-g-55), in which the deficiencies of the activity of the Office of the Seimas and the Chancellor of the Seimas were described, was attached to the draft Resolution of the Seimas “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” of 28 April 2009; it was distributed among the Members of the Seimas who participated in the sitting (the shorthand record (No. 67) of the non-prescheduled morning plenary sitting of the Seimas of 28 April 2009); in the material of the constitutional justice case at issue there are no data that the aforementioned annex to the draft resolution was hand-delivered to G. Vilkelis;

from 24 February 2009 until 28 May 2009, G. Vilkelis was temporarily incapable of work due to an accident on his way from work, therefore, he did not participate in the non-prescheduled plenary sitting of the Seimas on 28 April 2009;

it is obvious from the speeches of the Members of the Seimas during the sitting of the Seimas that the Members of the Seimas were informed that at the time of consideration of the draft Seimas Resolution (No. XIP-575) “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” G. Vilkelis was temporarily incapable of work;

during the non-prescheduled evening plenary sitting of 28 April 2009, after the repeat voting by secret ballot regarding the dismissal of G. Vilkelis from the office of the Chancellor of the Seimas, it was assented to the proposal to dismiss him; the results of the voting were as follows: ballot papers issued—90, ballot papers found—90, valid ballot papers—85, invalid ballot papers—5, “to dismiss”—76, “not to dismiss”—9 .

5. The named circumstances confirm the fact that even though the Members of the Seimas were informed that on 28 April 2009 G. Vilkelis was temporarily incapable of work, the question of his dismissal from office was considered without his participation and without hearing him.

6. While assessing the entirety of the said circumstances, it needs to be held that while dismissing G. Vilkelis from office, one disregarded the procedure of dismissal of the head of an institution appointed by the Seimas from office established in Paragraph 2 of Article 218 of the Statute of the Seimas, under which an official, the question of whose dismissal is considered, must have a real opportunity to provide the Seimas with his explanations and to answer questions of the Members of the Seimas.

7. While taking account of the arguments set forth, one is to draw a conclusion that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998).

8. It has been mentioned that Article 75 of the Constitution establishes one of the grounds for dismissal of an official appointed or elected by the Seimas from office—dismissal upon expression of no-confidence.

It needs to be noted that G. Vilkelis who is the head of a state institution appointed by the Seimas was dismissed from the office of the Chancellor of the Seimas due to the fact that he lost confidence of the Seimas. The Chancellor of the Seimas, as the head of a state institution appointed by the Seimas, is an official appointed by the Seimas which is mentioned in Article 75 of the Constitution, thus, while dismissing the Chancellor of the Seimas from office on the ground that he lost confidence of the Seimas, one had to heed the requirements of Article 75 of the Constitution.

9. As mentioned before, the regulation of the procedure of the parliamentary expression of no-confidence must be such as to ensure a proper legal process, which inter alia means that an official against whom no-confidence is expressed should have a real opportunity to present to the Seimas his explanations and to answer, at the Seimas sitting, all the arguments upon which the no-confidence is grounded.

10. In this ruling it has been held that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998), under which an official the question of whose dismissal is considered must have a real opportunity to present to the Seimas his explanations and to answer questions of the Members of the Seimas.

11. Having held the aforesaid, one needs to hold that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Article 75 of the Constitution.

12. In the constitutional justice case at issue, while construing Paragraph 1 of Article 69 of the Constitution, under which laws shall be adopted at the Seimas according to the procedure established by law, it has been held that sub-statutory legal acts adopted by the Seimas must be adopted while complying with the rules of adoption of legal acts determined in the Statute of the Seimas.

It has also been mentioned that the fact where the Seimas does not comply with the Constitution and the Statute of the Seimas in the course of adoption of sub-statutory legal acts means that the constitutional principle of a state under the rule of law, which implies a hierarchy of legal acts, is violated as well.

13. In this ruling it has been held that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Article 75 of the Constitution and Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998).

14. Having held the aforesaid, one also needs to hold that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Paragraph 1 of Article 69 of the Constitution and the constitutional principle of a state under the rule of law.

15. Having held that Seimas resolution No. XI-234 of 28 April 2009, in view of the procedure of its adoption, is in conflict with Paragraph 1 of Article 69 and Article 75 of the Constitution, with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 218 of the Statute of the Seimas (wording of 22 December 1998), the Constitutional Court will no longer investigate whether Seimas resolution No. XI-234 of 28 April 2009 is not in conflict with Paragraph 1 (wording of 7 June 2007), Paragraph 2 (wording of 22 December 2005) and Paragraph 5 (wording of 22 December 2005) of Article 44 of the Law on the State Service and with Paragraph 1 of Article 109 and Paragraph 1 of Article 217 of the Statute of the Seimas (wording of 22 December 1998).

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

To recognise that the Resolution (No. XI-234) of the Seimas of the Republic of Lithuania “On the Dismissal of G. Vilkelis from the Office of the Chancellor of the Seimas” (Official Gazette Valstybės žinios, 2009, No. 49-1942) of 28 April 2009, in view of the procedure of its adoption, is in conflict with Paragraph 1 of Article 69 and Article 75 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law and with Paragraph 2 of Article 218 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998).

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

Justices of the Constitutional Court: Egidijus Bieliūnas

                                                                     Toma Birmontienė

                                                                     Pranas Kuconis

                                                                     Gediminas Mesonis

                                                                     Ramutė Ruškytė

                                                                     Egidijus Šileikis

                                                                     Algirdas Taminskas

                                                                     Romualdas Kęstutis Urbaitis

                                                                     Dainius Žalimas