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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF THE SUPREME ADMINISTRATIVE COURT OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ITEM 11 OF PARAGRAPH 2 OF ARTICLE 153 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES IS NOT IN CONFLICT WITH THE CONSTITUTIONAL PRINCIPLE OF A STATE UNDER THE RULE OF LAW

 27 August 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, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania considered, at its procedural sitting, the petition (No. 1B-20/2013) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether “the provision ‘[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful’ of Item 11 of Paragraph 2 of Article 153 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, to the extent that it is related to the reopening of the proceedings of an administrative case after the effective court decision, whereby the case was completed and which has the force of res judicata, is annulled as being an unlawful normative legal act, without specifying that it may not be applied from the day of its adoption, is not in conflict with the principle of a state under the rule of law, which is consolidated in the Constitution of the Republic of Lithuania”.

The Constitutional Court

has established:

The Supreme Administrative Court of Lithuania, the petitioner, was considering an administrative case subsequent to a petition requesting the reopening of proceedings. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court requesting an investigation into whether “the provision ‘[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful’ of Item 11 of Paragraph 2 of Article 153 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, to the extent that it is related to the reopening of the proceedings of an administrative case after the effective court decision, whereby the case was completed and which has the force of res judicata, is annulled as being an unlawful normative legal act, without specifying that it may not be applied from the day of its adoption, is not in conflict with the principle of a state under the rule of law, which is consolidated in the Constitution of the Republic of Lithuania”.

The Constitutional Court

holds that:

  1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether Item 11 of Paragraph 2 of Article 153 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is not in conflict with the constitutional principle of a state under the rule of law.
  2. Under Paragraph 1 of Article 153 “The Grounds for Reopening Proceedings” of the Law on the Proceedings of Administrative Cases, the proceedings of a case completed by a court decision or ruling that has come into effect may be reopened on the grounds and under the procedure established in this section. Paragraph 2 of the said article, which is impugned by the petitioner, inter alia prescribes:

“The proceedings may be reopened on the following grounds: <...>

11) if the legal act on the basis of which the court decided the case has been annulled as unlawful.”

Thus, Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases establishes a ground for reopening the proceedings of a case completed by a court decision or ruling that has come into effect—where the legal act on the basis of which the court decided the case has been annulled as unlawful.

  1. In administrative case No. A(442)-1528/2009, the Supreme Administrative Court of Lithuania adopted a final decision whereby the court refused the applicant in that administrative case the inclusion of the factual time of his service in the armed forces of other states from 11 March 1990 until 30 March 1992 in the time of service counted for the purposes of granting the state pension of officials and servicemen. After the said court decision had come into effect, the Constitutional Court, by its ruling of 22 February 2013, recognised Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Republic of Lithuania’s Law on the State Pensions of Officials and Servicemen, which had been applied by courts in deciding administrative cases insofar as the regulation established in the said item was related to the forced military service (compulsory “actual military service” upon call-up as established by the legal acts of the USSR) in the armed forces, the border guard service, the interior and other services of the USSR, as being in conflict with the Constitution.

By indicating the Constitutional Court’s ruling of 22 February 2013 as a ground for his petition, the petitioner in the aforesaid administrative case applied to the Supreme Administrative Court of Lithuania with the petition for reopening the proceedings pursuant to Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases. The petitioner in the said administrative case did not present any arguments as to why the said Constitutional Court’s ruling, insofar as Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen had been recognised as being in conflict with the Constitution, could be applied in the case of the inclusion of his factual length of service in the armed forces of the USSR (Russian Federation) from 11 March 1990 until 30 March 1992 in the length of service counted for the purposes of granting the state pension of officials and servicemen.

The Supreme Administrative Court of Lithuania adopted the ruling to suspend the said administrative case and apply to the Constitutional Court with the petition to investigate the compliance of the provision “[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful” of Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with the constitutional principle of a state under the rule of law.

  1. Under Paragraph 2 of Article 158 of the Law on the Proceedings of Administrative Cases, when considering a petition for reopening proceedings, the court concerned ascertains that the petition is based on the grounds for reopening proceedings provided for by laws. It should be noted that, when verifying the validity of a petition for reopening proceedings, the court must assess not only the legal regulation that should be applied, but also the factual circumstances available in the material of the case.

In this context, it should be emphasised that the Constitutional Court, by its ruling of 22 February 2013, recognised not the entire Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen as being in conflict with the Constitution, but only the regulation established in the said item to the extent that it was related to the forced military service in the armed forces, the border guard service, the interior and other services of the USSR. In the said ruling, the Constitutional Court held that the compulsory “actual military service” established by the legal acts of the USSR and imposed upon the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their descendants) subsequent to call-up was reasonably considered as forced military service to a foreign state, and that all the citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their descendants) had been conscripted to such service during the period of the occupation of the territory of the Republic of Lithuania (from 15 June 1940 until the restoration of the independence of the Republic of Lithuania on 11 March 1990) unlawfully.

It should be noted that, from the material of the aforementioned administrative case, it is clear that the service of the petitioner in that administrative case in the armed forces of the USSR (Russian Federation) from 11 March 1990 until 30 March 1992 was not forced military service. Thus, in view of the said factual circumstance, the Constitutional Court’s ruling of 22 February 2013, may by no means be applied by the Supreme Administrative Court of Lithuania when considering the petition of the petitioner in the administrative case in question for reopening proceedings, i.e. Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen may be applied with respect to the petitioner in the said administrative case only insofar as it was recognised as being in conflict with the Constitution.

  1. In this context, it should be mentioned that, from the Constitutional Court’s ruling of 22 February 2013, it is clear that the legal acts that were adopted after the restoration of the independence of the Republic of Lithuania regarding the calculation of the length of service for the purposes of granting the state pension of officials and servicemen (the pension for the served years), inter alia the legal regulation laid down by the Government and valid until 31 December 1994, had to be regarded as obliging to include in the said length of service only the time of the service in the armed forces, the border guard service, and the system of the interior of the USSR until 11 March 1990. In the aforementioned ruling, the Constitutional Court also pointed out that, under the Constitution, the legislature has discretion, by taking account of certain significant circumstances, to establish such legal regulation governing the granting of the state pensions of officials and servicemen under which the time of service to another state may, under the circumstances when it was objectively impossible to perform service to the State of Lithuania, be compared to a certain part of the time of the service of a person to the State of Lithuania that is necessary in order to grant the person the said pension.
  2. In view of the foregoing circumstances, the conclusion should be drawn that the Supreme Administrative Court of Lithuania, the petitioner, had not assessed in the administrative case in which it adopted the ruling to suspend the consideration of the case and apply to the Constitutional Court the factual circumstances available in the material of the administrative case from which it is clear that the petition of the petitioner in the administrative case in question for reopening proceedings may not be based on the aforementioned Constitutional Court’s ruling of 22 February 2013. As mentioned before, in his petition for reopening proceedings, the petitioner in the said administrative case did not present any arguments as to why the aforementioned Constitutional Court’s ruling, insofar as Item 1 of Paragraph 3 (wording of 18 January 2007) of Article 16 of the Law on the State Pensions of Officials and Servicemen had been recognised as being in conflict with the Constitution, could be applied in the case of the inclusion of his factual length of service in the armed forces of the USSR (Russian Federation) from 11 March 1990 until 30 March 1992 in the length of service counted for the purposes of granting the state pension of officials and servicemen.

Thus, from the material of the administrative case in question, it is clear that the court is not precluded from administering justice—from solving the question of the validity of the petition to reopen proceedings, without applying to the Constitutional Court regarding the compliance of Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases with the Constitution.

In this context, it should be noted that the application by a court to the Constitutional Court with a petition for an investigation into the compliance of a legal act with a legal act of higher force, inter alia, with the Constitution, as well as an investigation into the said compliance, is not an end in itself; the purpose of the application (as a constitutional institute) by a court to the Constitutional Court is to ensure that justice is administered (the Constitutional Court’s decision of 13 November 2007 and the rulings of 2 September 2011 and 29 June 2012).

  1. In view of the foregoing circumstances, there is a ground to hold that the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into the compliance of the provision “[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful” of Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases, insofar as it is related to the reopening of the proceedings of an administrative case after the effective court decision, whereby the case was completed and which has the force of res judicata, is annulled as being an unlawful normative legal act, without specifying that it may not be applied from the day of its adoption, with the Constitution, should be regarded as an end in itself. Any petition for an investigation into the compliance of a legal act with the Constitution where such a petition is an end in itself should be assessed as being not within the jurisdiction of the Constitutional Court.
  2. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.
  3. In the light of the foregoing, the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether the provision “[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful” of Item 11 of Paragraph 2 of Article 153 of the Law on the Proceedings of Administrative Cases, insofar as it is related to the reopening of the proceedings of an administrative case after the effective court decision, whereby the case was completed and which has the force of res judicata, is annulled as being an unlawful normative legal act, without specifying that it may not be applied from the day of its adoption, is not in conflict with the constitutional principle of a state under the rule of law, should be refused to be accepted for consideration.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to accept for consideration the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether the provision “[t]he proceedings may be reopened on the following grounds: <...> 11) if the legal act on the basis of which the court decided the case has been annulled as unlawful” of Item 11 of Paragraph 2 of Article 153 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, insofar as it is related to the reopening of the proceedings of an administrative case after the effective court decision, whereby the case was completed and which has the force of res judicata, is annulled as being an unlawful normative legal act, without specifying that it may not be applied from the day of its adoption, is not in conflict with the constitutional principle of a state under the rule of law.

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

The decision is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                        Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas