Lt

On the government resolution on the issues of the work pay of employees of law enforcement institutions

Case No. 3/95

 THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995 with the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 of the Republic of Lithuania’s Law on Courts, Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on the Prosecutor’s Office, the Republic of Lithuania’s Law on the National Audit Office, and the Republic of Lithuania’s Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”

 Vilnius, 6 December 1995

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Stasys Šedbaras and Juozas Žilys

The court reporter—Sigutė Brusovienė

Seimas members Andrius Kubilius and Vidmantas Žiemelis, acting as representatives of a group of the members of the Seimas of the Republic of Lithuania, the petitioner

Head of the Wages Department of the Ministry of Social Security and Labour Algirdas Bartkevičius, the Secretary of the Ministry of Justice and Director of the Courts Department Artūras Drigotas, and Director of the Finance and Economy Department Gertrūda Tumelienė, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 7 November 1995, considered Case No. 3/95 subsequent to the petition submitted to the Court by a group of members of the Seimas of the Republic of Lithuania requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995 does not contradict the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 and Paragraph 1 of Article 55 of the Law of Courts the Republic of Lithuania, Paragraph 1 of Article 4 and Article 35 of the Republic of Lithuania’s Law on the Prosecutor’s Office, Article 2 of the Republic of Lithuania’s Law on the National Audit Office, and the Republic of Lithuania’s Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

The Constitutional Court

has established:

I

On 31 March 1995, the Government of the Republic of Lithuania adopted the Resolution (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” (Official Gazette Valstybės žinios, 1995 No. 30-685; hereinafter referred to as the impugned government resolution) by which Item 8 of the amended resolution has been formulated anew in the following way:

“6. To establish that the Government of the Republic of Lithuania shall take decision on the size of extra pay supplementing service remuneration and bonuses awarded to the Chairperson (President) of the Supreme Court of Lithuania, the Prosecutor General of the Republic of Lithuania and the Auditor General of the Republic of Lithuania; the Minister of Justice—to the chairpersons and judges of the Court of Appeal of the Republic of Lithuania, Area and District Courts and the Economic Court of the Republic of Lithuania, and the Prosecutor General of the Republic of Lithuania—to the heads of the prosecutor’s offices. Heads of the said institutions shall take decisions on the size of extra pay supplementing service remuneration and bonuses awarded to other officials and employees and shall establish the procedure for the awarding of the bonuses.”

The petitioner requests the Constitutional Court to investigate whether the said government resolution does not contradict Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 and Paragraph 1 of Article 55 of the Law on Courts of the Republic of Lithuania, Paragraph 1 of Article 4 and Article 35 of the Republic of Lithuania’s Law on the Prosecutor’s Office, Article 2 of the Republic of Lithuania’s Law on the National Audit Office, and the Republic of Lithuania’s Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

II

The petitioner grounds his request on the following arguments:

  1. Conforming to the impugned resolution, the Government is entitled not only to establish individual different-size extra pay supplementing service remuneration, but also to award bonuses of unlimited size to individual judges, prosecutors and other employees of the institutions listed in the resolution. For example, it means that the Government and a member of the Cabinet (the Minister of Justice) assess, whether judges who considered a case and other officials deserve a bonus in general and take decision on the size of the bonus. Thus, the courts and the judges as well as the employees of the prosecutor’s office may be dropped a hint as to which of their decisions and actions taken in the administration of justice are rated highly, and which are disapproved of.
  2. Paragraph 2 of Article 109 of the Constitution establishes that “while administering justice, judges and courts shall be independent”. This provision of the Constitution has also been enacted in Paragraph 1 of Article 46 of the Law on Courts, and Paragraph 1 of the Article 55 of this Law indicates that “the remuneration of judges shall be established by means of laws of the Republic of Lithuania”. Therefore, no one, including the Government or the Minister of Justice, has been reserved the right to assess the work of judges and to establish and pay individual extra pay supplementing service remuneration or to award bonuses to them on the basis of these assessments.
  3. Similar provisions on the independence of employees of the prosecutor’s office have been enacted in the Law on the Prosecutor’s Office. Paragraph 1 of Article 4 of this law stipulates that “in executing their powers, officials of the prosecutor’s office shall be independent and shall observe only the law”. In order to ensure this, Article 35 of the law provides for that “the procedure and terms and conditions of work pay for officials of the prosecutor’s office shall be established by means of laws of the Republic of Lithuania”. The Law on the Prosecutor’s Office does not envisage that the Government may award bonuses to employees of the prosecutor’s office. When the possibility of establishing and awarding individual bonuses or one-off bonuses to judges or employees of the prosecutor’s office is opened to the Government or the minister, the courts and the prosecutor’s office may no longer maintain their independence.
  4. Article 2 of the Law on the Department of National Audit establishes that “the Department of National Audit shall have its own estimate of expenditure which shall be proposed by the Auditor General to the Seimas of the Republic of Lithuania for its approval”. If the expenditure for pay for work included bonuses, they would be approved (allocated) by the Seimas, but not by the Government.
  5. On 3 February 1993, the Seimas adopted (and, on 18 March 1993, supplemented) the Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”, which provided for that “until the respective laws are specified, the service remuneration of judges of the courts of the Republic of Lithuania, employees of the prosecutor’s office, <...> and the Department of National Audit shall be established by the Government of the Republic of Lithuania”. There is no mention made in this law about any extra pay supplementing service remuneration or bonuses, therefore, by adopting this resolution, the Government has committed a flagrant breach of the said law. There are no legal grounds for widening the concept of the service remuneration of the listed employees by including in it the individual extra pay supplementing service remuneration and bonuses.
  6. Both the Constitution and the respective laws in operation contain provisions which safeguard the independence of the courts and the prosecutor’s office as they intentionally specify that the remuneration of the employees of these institutions (and also of the Department of National Audit) shall be established only by law. However, the Government undertakes not only to determine the size of service remuneration (it may exercise this right temporarily), but also to establish individual extra pay of different size, supplementing service remuneration, or even to award one-off bonuses to the Chairperson (President) of the Supreme Court, the Prosecutor General and the Auditor General (and the Minister of Justice—to the chairpersons and judges of courts) for their work done while considering cases, for fairness and adherence to the principle. Therefore, individual employees of courts, the prosecutor’s office and the Department of National Audit may inevitably become materially dependent upon the Government.
  7. In the opinion of the petitioner, the Supreme Court, the Office of the Prosecutor General and the Department of National Audit and the heads and employees of these institutions will be able to observe only the law in practice and will be independent in executing their powers only in the event that instead of extra pay supplementing service remuneration or bonuses they are paid for their work the service remuneration of a respectively bigger size which will be established only by law, but not by government resolution.

III

The representatives of the petitioner, members of the Seimas A. Kubilius and V. Žiemelis, having acquainted themselves with the explanations submitted by the representatives of the party concerned, have specified additionally:

  1. It is not true that the concept of independence of judges and courts may not be related to the problem of the remuneration of judges. If the Government is granted the right to manipulate the remuneration of judges, the notion of independence of courts is rendered meaningless, because when considering the independence of courts and judges, normally, the constancy of their remuneration is implied. In certain countries (e.g., Great Britain), any reduction of the remuneration of judges is forbidden.

The system of the establishing and awarding of the so-called bonuses in particular threatens the independence of the courts and other institutions which are the subject of analysis in this case, since the decision to award them is predetermined by the factors which are absolutely subjective.

  1. While interpreting the concept of independence it is necessary to stress that the Constitution does not state expressly that the same safeguards guaranteeing the independence of courts should be applied to the prosecutor’s office and the National Audit Office, however, it is an undisputed fact that such safeguards are essential to these institutions. This need is reflected in the Law on the Prosecutor’s Office, which provides that the prosecutors’ office, while being an independent constituent part of the judiciary, shall be independent of the institutions of state authority and government.

Whereas the National Audit Office controls the activity of the Government, it should therefore be independent of the Government’s will to establish extra pay or bonuses and also of its influence on the decisions adopted by the state auditors.

  1. Judges, prosecutors and state auditors may and should be entitled to the extra pay, supplementing service remuneration, for years of service, their professional qualifications assessed on the basis of clear criteria, also for the region in which they are working, however, this all should be prescribed by law.

IV

The representatives of the party concerned, Head of the Wages Department of the Ministry of Social Security and Labour A. Bartkevičius, and Director of the Finance and Economy Department of the Ministry of Justice G. Tumelienė, in their answers to the arguments submitted by the petitioner have indicated the following:

  1. Article 109 of the Constitution and Article 46 of the Law on Courts establish the independence of judges, however, this is no way related to the remuneration of judges and the extra pay supplementing the remuneration that are paid to them, because the judges are paid remuneration and extra pay supplementing it for their work, but not for the consideration of individual cases. The judges are awarded bonuses on the occasions of jubilees and Christmas and Easter holidays, and the chairpersons of courts in individual cases are awarded the performance bonuses for good financial-economic results and organisation of work, for work with bailiffs etc.
  2. It is established in Article 55 of the Law on Courts that the remuneration of judges shall be established by the respective laws of the Republic of Lithuania. The drafting of such a law is currently underway and it is expected that it will be adopted in the near future. The Law of 3 February 1993 provides that until the respective laws are specified, the service remuneration of the judges of the Republic of Lithuania, and employees of the prosecutor’s office and other institutions indicated by the petitioner, shall be established by the Government of the Republic of Lithuania, and, therefore, there is no contradiction of laws in this case. Furthermore, Article 31 of the Statute of the Supreme Court of Lithuania (Official Gazette Valstybės žinios, 1995, No. 36-887) which was enacted in 1995, establishes that the remuneration for work of a judge of the Supreme Court of Lithuania shall consist of the service remuneration established on the basis of a coefficient, extra pay for years of service in one’s capacity as judge and the extra pay of a judge, which in the case of the Chairperson (President) of the Supreme Court shall be established by the Government of the Republic of Lithuania, and in the case of the chairpersons of the Court departments, judges and other employees of this Court—by the Chairperson (President) of the Supreme Court.

V

In the court hearing, Seimas member A. Kubilius, a representative of the petitioner, has confirmed the request of the group of the Seimas members and the reasoning submitted in the additional explanation. In his opinion, the necessity for judges, courts, the officials of the prosecutor’s office, and state auditors to be entirely independent while making their decisions is beyond doubt. Whereas money and material prosperity is one of the likely instruments of influence which may be exerted over them. These officials should be protected against such influence. On the other hand, the executive, which according to the laws is controlled by these officials, should not be exposed to the temptation to exert such influence over them. In essence, the request impugns the provision of the aforementioned resolution which provides that the Government or the Minister of Justice may establish and give individual extra pay or award bonuses, and by means of such instruments at the same time influence the decisions adopted by courts and other institutions. In that respect, the government resolution is clearly defective.

Seimas member V. Žiemelis, a representative of the petitioner, has noted that the Seimas has envisaged the right to establish service remuneration as such, but not service remuneration supplemented with additional pay, extra pay, etc. In his opinion, it may not be claimed that extra pay should not be paid to the judges, prosecutors etc., however, the Seimas has either to supplement the law and accord the Government the right to make decisions to establish and pay extra pay, or to solve this question in a different way. The Statute of the Supreme Court and the Statute on the Service in the Prosecutor’s Office allow the payment of extra pay, however, it has to be established by whom (which authority) it is done and under which procedure.

The judge is not a functionary according to the Constitution. In some countries, the remuneration of judges remain unchanged for many years, whilst in some other countries their earnings are higher than those of the Prime Minister, and this is taken for granted. The situation should be the same in Lithuania.

VI

In the court hearing, the representative of the party concerned Director of the Finance and Economy Department of the Ministry of Justice G. Tumelienė has affirmed that the Seimas adopted a law by which it entrusted the Government to establish the remuneration of the officials of courts, the prosecutor’s office and the National Audit Office. Government resolution No. 499 of 29 November 1991 says that the heads of institutions have the right to pay service remuneration, additional pay, extra pay, and to award bonuses. The Law adopted by the Seimas on 3 February 1993 establishes that the Government is entitled to set forth the additional conditions of the work pay of the officials of courts, the prosecutor’s office, the National Audit Office and other institutions according to the procedure established in government resolution No. 499 of 1991. The bonuses are paid from the saved share of the fund for remuneration for work. The judges are not awarded bonuses for their professional activities.

The petitioner’s claim that bonuses and additional pay are not part of the service remuneration is not completely true. The judges are paid their full remuneration from the fund for remuneration for work that is approved by the Seimas by respective law. If the funds of that fund are saved, extra pay and bonuses are paid from the same work remuneration funds and their size is included in the size of the service remuneration since they are taxed and their size is included in the average work remuneration.

In the opinion of the representative of the party concerned, the Secretary of the Ministry of Justice, Director of the Courts Department A. Drigotas, it is not prohibited by law to establish the additional pay and the Government does not commit a breach of law by establishing the right to pay additional pay and give other incentives. He confirmed that extra pay and bonuses are not awarded for achievements in the professional activity, therefore, they do not constitute the source of influence over the judges and the courts. The chairpersons and deputy chairpersons of courts, the chairpersons of the divisions of area courts and the Court of Appeal are awarded bonuses for the maintenance activities, as there exist a lot of maintenance problems pertaining to the establishment of court houses and fitting out of the premises. The judges who are coping with these tasks should be given incentives. These are today’s problems of living. The representative of the party concerned has admitted that all judges would like that a more specific procedure for the establishment of remuneration and other social guarantees be prescribed by law so that any possibility of manipulating the status of the judge would be ruled out. The request of the petitioner should not be satisfied.

The representative of the party concerned, the Head of the Wages Department of the Ministry of Social Security and Labour, A. Bartkevičius has pointed out that the entry for the word “remuneration” in “A Dictionary of the Modern Lithuanian Language” says that remuneration is “payment for work”. One may maintain that service remuneration together with extra pay supplementing it constitute payment for work. Bonuses may also be seen as a part of this payment. It is difficult to take account of the qualifications of a professional in a fixed remuneration scheme, therefore, the extra pay justifies itself in this case. State establishments are not allocated additional funds for the payment of extra pay and the award of bonuses. The Seimas approves the annual budget and that fund is then spent throughout the year.

The impugned government resolution gives the Government the right to establish the extra pay and to award bonuses only to three persons: the Chairperson (President) of the Supreme Court, the Prosecutor General and the Auditor General. The additional pay and bonuses paid to other officials are established by the heads of their institutions, not the Government, therefore, it may not be maintained that the Government may influence the decisions of the officials by adjusting their work remuneration.

At present, the work pay for officials of different institutions is established in a different manner. The system should improve upon the enactment of the law which is currently being drafted and will introduce a uniform system of wages for employees of all institutions and organisations financed out of the State budget.

The rules for the establishment of the remuneration of judges vary from country to country. For example, in Sweden the Ministry of Justice has the right to determine the extra pay paid to judges, whilst in Estonia, pursuant to the government resolution, the Ministry of Justice also has the right to take decisions on extra pay to the judges and officials of the prosecutor’s office. In the opinion of the representative of the party concerned, there are no grounds to draw conclusions about the independence of judges and other officials on the basis of the fact of the payment of extra pay, since other guarantees or issues relating to the activities of these institution may also be the pretext for the raising of doubts about the independence of these institutions.

The Constitutional Court

holds that:

Paragraph 1 of Article 5 of the Constitution establishes that “in Lithuania, the powers of the state shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary”. The content of this norm is disclosed in other articles of the Constitution. The competence of each state authority institution is established in accordance with its function, which is predetermined by the place of that branch of power in the general system of powers and by its relationship with other branches of power.

The Seimas enacts laws, considers the programme of the Government submitted by the Prime Minister, supervises the activities of the Government, appoints judges in the cases provided by the Constitution and decides other issues put forth in Article 67 of the Constitution. The President of the Republic, who is the head of the State, represents the State of Lithuania and performs all the duties which he is charged with by the Constitution and laws. The Government administers the affairs of the country, implements laws and resolutions of the Seimas, drafts and executes the State Budget when it is approved by the Seimas, and discharges other duties. Thus, the independence of separate branches of power, as well as the principle of a balance of power is established in the Constitution.

One of the fundamental distinguishing characteristics of a democratic state is the principle of independence of the judiciary. All democratic states adhere to this principle, and as the historical facts illustrate, denial of this principle is an immanent feature of totalitarian and authoritarian regimes.

Taking into consideration the principle of the separation of powers established in the Constitution and the system of state institutions, it is impossible to give a uniform assessment of the contents of the question of relationship between the courts, the prosecutors and the National Audit Office on the one hand, and the Government on the other raised by the petitioner. The status of courts is determined in Chapter IX of the Constitution. According to the Constitution, the prosecutors are a constituent part of the judiciary, therefore, the principles defining the independence of courts are applicable to them, but only with due consideration of the approach specified by the Constitution. Chapter XII of the Constitution determines the functions and framework of activities of the National Audit Office, a state institution of economic financial control, which supervises the legality of holding and use of state property and the State Budget performance process. It is accountable directly to the Seimas, which performs the parliamentary control over this institution.

Taking into account the status of the courts, the prosecutor’s office and the National Audit Office, and the ways of the exercise of their jurisdiction, the petitioner’s request to investigate the compliance of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, with the Constitution of the Republic of Lithuania and the principle of independence of courts, the prosecutor’s office and the National Audit Office as determined by law, has to be considered separately in case of each institution.

  1. On the compliance of the impugned government resolution with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 and Paragraph 1 of Article 55 of the Republic of Lithuania’s Law on Courts as well as the Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

The judicial protection of human rights is enshrined in the Constitution. Paragraph 1 of its Article 30 establishes that a person “whose constitutional rights or freedoms are violated, shall have the right to appeal to court”, and Paragraph 2 of its Article 31 stipulates that “Every indicted person shall have the right to a fair and public hearing by an independent and impartial court”. Thus, it is indispensable to safeguard the independence of courts in order to secure the human rights and freedoms in the first place.

Paragraphs 2 and 3 of Article 109 of the Constitution provide: “When administering justice, judges and courts shall be independent. While investigating cases, judges shall obey only the law”. Therefore, the assumption that the independence of the judiciary is not a privilege, but one of the principal duties of judges and courts, ensuing from the human right to an impartial arbiter in a dispute guaranteed by the Constitution, must necessarily be the criterion guiding the assessment of the independence of judges and courts. Such a concept of independence is also reflected in a number of international instruments.

Article 10 of the Universal Declaration of Human Rights adopted by the UN General Assembly on 10 December 1948, establishes that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

By its resolution No. 40/32 of 29 November 1985 and resolution No. 40/146, the UN General Assembly approved “Basic Principles on the Independence of the Judiciary”. Article 1 of the document reads: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”

Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms establishes that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

On 13 October 1994, the Committee of Ministers of the Council of Europe adopted the Recommendation (No. 94/12) “On the Efficiency and Role of the Judges”. Item 3 of its rule 5 prescribes the following duties for the judges: a) to act independently and freely from an outside influence in all cases; b) to conduct an impartial investigation of the case based on the assessment of the established evidence and in conformity with the laws, and ensure an impartial hearing of all parties and compliance with provisions of the Convention of Human Rights and Freedoms. This rule also requests the judges to abstain from the investigation of the case or resort to other measures in order to ensure the full realisation of the independence of courts.

The judge is obligated to be independent by the oath which, according to Paragraph 6 of Article 115 of the Constitution, is taken by the judge upon his appointment to the office. The judge swears “to preserve loyalty to the Republic of Lithuania, to obey only the law while administering justice, to protect the human rights, freedoms and lawful interests, to conscientiously fulfil his duties, be human and to never discredit the name of the judge”.

The Constitution, the Law on Courts and other laws provide for the complex of safeguards guaranteeing the independence of judges and courts. On the basis of these guarantees conditions should be created preventing anyone’s interference with the actions of judges or the court while rendering an impartial and fair judgement. The impartiality of the judge is not ensured exclusively by law. The universally recognised code of judicial ethics establishes strict requirements of ethics (to be conscientious, discreet, attentive and to preserve dignity), professional qualifications (competence and impartiality) and other to judges. Thus, both the constitutional and other legal safeguards guaranteeing the independence of judges and the court, and the rules of judicial ethics create the basis for people’s belief in the impartiality and objectivity of the court as the arbiter of disputes.

A review of the complex of the safeguards guaranteeing the independence of judges and the court and the responsibility of judges leads to the conclusion that they are closely interrelated. Therefore, the independence of judges and courts in general may not be examined on the basis of one element, no matter how salient it may be. On the other hand, it must be admitted that if any of the safeguards guaranteeing the independence of judges and courts are violated, it would impede administration of justice and protection of human rights and freedoms.

The contents of the safeguards guaranteeing the independence of judges and courts while administering justice first of all derives from their independence from a) any interference with their activities on the part of the parties to the case; b) the influence of state institutions of authority and government, as well as social institutions, corporate, unlawful private or other interests.

The nature of the safeguards of independence is also linked to the legal status of judges and courts. The judge may not be qualified as a functionary according to the nature and contents of his principal duties. He may not be requested to co-operate in the implementation of a certain political programme. The judge is able to secure human rights and freedoms by way of administration of justice founded on laws and other legal acts.

According to the detailed interpretation of the independence of judges and the court established in Paragraph 2 of Article 109 of the Constitution and set forth in the Law on Courts and other laws of Lithuania, the following three groups of safeguards may be conditionally identified among the safeguards guaranteeing the independence of judges: a) those guaranteeing the security of tenure, b) guaranteeing personal immunity of a judge, and c) those securing social (material) guarantees of judges.

  1. a) A judge who is fulfilling his duties conscientiously, is guaranteed by Article 115 of the Constitution that he will not be dismissed from the office on the grounds other than specified in this article (upon expiration of his tenure or reaching pensionable age as determined by law, for reasons of health and other). The security of the tenure is important since it permits the judge to remain independent from the government of the day and avoid the pressure to accommodate to the likely change of political power.

On the other hand, Article 115 of the Constitution envisages two specific cases which constitute the grounds for dismissal of judge from the office: if his behaviour discredits his position as judge, and when judgement imposed on him by court comes into force. It means that judges must meet very strict professional and ethics requirements. Behaviour of judges in and outside the office should raise no doubt about their independence.

  1. b) Paragraph 2 of Article 114 of the Constitution says that judges may not have legal actions instituted against them, nor may they be arrested or restricted of personal freedom without the consent of the Seimas, or in the period between sessions of the Seimas, of the President of the Republic of Lithuania. Article 116 maintains that if the Chairperson (President) or judges of the Supreme Court or the Court of Appeal grossly violate the Constitution, breach their oath, or are found guilty of an offence, the Seimas may remove them from office according to impeachment proceedings.

On the other hand, the judicial immunity also comprises their personal immunity from attempts to exert influence on them from outside. Article 114 of the Constitution establishes the liability for any attempts to prevent judges from conducting a fair and impartial hearing of the case and Article 298 of the Criminal Code specifies that any such actions shall incur criminal liability.

  1. c) Being arbiters of legal disputes, judges must be not only qualified professionals and have authority, but also be independent materially. For that end, laws of many countries provide for a separate procedure for the establishment of remuneration or various additional pay supplementing remuneration for judges on the basis of uniform criteria. Normally, their remuneration is of a significantly bigger size than that of functionaries. This tradition used to be practiced in Lithuania as well. Higher remuneration of judges used to be established by means of a separate law.

As early as the end of the eighteenth century, the US Constitution enacted a provision that the remuneration of judges may not be reduced during their tenure. This principle became widespread universally and was proclaimed as one of the fundamental safeguards guaranteeing the independence of judges. Therefore, any attempts to reduce the remuneration or other social guarantees of judges or cut the budget of the judiciary are interpreted as infringement on the judicial independence.

In the opinion of the petitioner’s representative, the very procedure for establishment of the remuneration of judges constitutes a violation of judicial independence, because, according to the impugned government resolution, the Government undertakes not only to determine the service remuneration of judges (it has such temporal right according to the law), but also to approve and pay to them extra pay supplementing service remuneration or even award bonuses of different sizes. The petitioner’s representatives, in essence not impugning the possibility of the additional pay, supplementing service remuneration, established for judges for service years, and the possibility of other extra pay supplementing remuneration, maintain that this all should be prescribed by law, but not by government resolution or order of the Minister of Justice.

In its assessment of the opinion expressed by the petitioner, the Constitutional Court points out that the Constitution does not specify which institution—the Seimas or the Government—establishes the remuneration of judges. However, in observance of the general constitutional principles of judicial independence, the legislature has established in Article 55 of the Law on Courts that the remuneration of judges shall be regulated by means of laws of the Republic of Lithuania.

The Constitutional Court also stresses that judges’ the fund for the remuneration for work of judges is annually approved not by the Government, but by the Seimas by means of the Law on the Budget. The size of the service remuneration and extra pay for judges is determined on the basis of the size of that fund. At present, the composition of the remuneration of every judge does not depend on the number of cases processed by him or, moreover, upon the judgement rendered by a judge in a given case; it is based on the general criteria which are applied to determine the size of the work remuneration of judges. The extra pay supplementing service remuneration is not established on an individual basis. In addition, extra pay, supplementing service remuneration, paid to the Supreme Court judges is established not according to the provisions of the impugned government resolution, but pursuant to the norms of the Statute of the Supreme Court which has already been enacted by law. It may not be omitted at the same time that the Seimas in its Law adopted on 3 February 1993 ruled that “until the respective laws are specified, <...> the size of the service remuneration of judges of courts of the Republic of Lithuania shall be determined by the Government of the Republic of Lithuania”. As long as the law on the remuneration of judges has not been not enacted yet, the Government remains responsible for the task assigned to it by the Seimas, and in the Law on the Budget approved annually by the Seimas reasonable limits for fulfilment of this task are set out.

In view of the argumentation provided above, the conclusion should be made that the right to establish extra pay, supplementing service remuneration, for judges prescribed in the impugned government resolution on the basis of general criteria, does not contradict the Constitution.

However, by the impugned government resolution, the Government has also been reserved the right to award bonuses to the Chairperson (President) of the Supreme Court, and the Minister of Justice—the chairpersons and judges of the Court of Appeal, area and district courts and the Economic Court.

The payment of bonuses is a method stimulating individual incentive. It means that judges may be selected individually for stimulating such incentive and the size of the bonus may also be established individually in the case of everyone who is awarded. Normally, the function of bonuses is to give incentive to the employees to achieve certain results.

As it has been mentioned already, judges obey only the law while administering justice. It means that judges may not be encouraged or induced to conduct a case in a particular manner, since the judge has to establish the objective truth in a given case and on the basis of conclusive evidence to apply the law which is to be invoked. Furthermore, all judges enjoy equal status, only their responsibilities and functions differ, depending on which level of the judicial system they are working at.

The awarding of bonuses is normally linked with the implementation of employment relations regulated by law, whereas judges are not subordinate to any authority, nor to the Government or the Minister of Justice, therefore, payment of bonuses to judges entails violation of independence of the judiciary.

Pursuant to the above-mentioned reasoning, the conclusion should be made that the provision of Item 6 of the amended resolution set forth in the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Remuneration of Employees of Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, stipulating that the Government of the Republic of Lithuania shall take decisions on the sizes of bonuses awarded to the Chairperson (President) of the Supreme Court, and the Minister of Justice—to the chairpersons and judges of the Court of Appeal, area and district courts and the Economic Court of the Republic of Lithuania, contradicts Paragraph 2 of Article 109 of the Constitution and Paragraph 1 of Article 46 of the Law on Courts.

  1. On the compliance of the impugned government resolution with Paragraph 1 of Article 4 and Article 35 of the Republic of Lithuania’s Law on the Prosecutor’s Office as well as the Republic of Lithuania’s Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit

The principal functions of the prosecutors and investigators are prescribed in Chapter IX of the Constitution titled “The Court”. The prosecutors and investigators are treated in it as a constituent part of the judiciary. Thus, while conducting the legal proceedings, they are applied the safeguards guaranteeing the independence of the judiciary established by law. The prosecutors or investigators are independent, and they act independently when they pursue a public charge, carry out criminal prosecution, control the activities of the agencies of preliminary inquiry and conduct preliminary investigation. The prosecutors or investigators obey only the law while making decisions in such cases and there can be no interference with their activities.

Paragraph 3 of Article 118 of the Constitution states that the status of prosecutors and investigators shall be established by law. Consequently, the law gives a more specific definition of the place of these officials in the system of the judiciary.

Article 4 of the Law on the Prosecutor’s Office provides for the safeguards guaranteeing the independence of officials of the prosecutors’ office. Paragraph 1 of the said article stipulates that “in executing their powers, officials of the prosecutor’s office shall be independent and shall observe only the law”. Paragraph 2 of this article states the following: “The institutions of state authority and government and their respective officials, as well as political parties, public organisations and movements, and the mass media shall be prohibited from interfering with the work of the prosecutor’s office during the investigation of cases and discharge of other functions of the prosecutors’ office”. This prohibition is aimed at preventing the hindrance to objective examination of all the circumstances of the case during the investigation. Any influence upon the investigators or prosecutors may inflict irreparable harm and lead to disastrous consequences: the guilty person may be relieved of liability or an innocent person may be held criminally liable.

In view of this, validity of the part of the impugned government resolution, in which it is established that the Government shall take decision on the size of the bonus to be awarded to the Prosecutor General, appears to be doubtful. As it has been mentioned already, norms set forth in Article 118 of the Constitution, establish that the prosecutors and investigators are a constituent part of the judiciary, and the Prosecutor General is disassociated from the executive not only on the basis of his general status, but also owing to the rule that he is appointed for seven years and dismissed from the office by the Seimas. Therefore, the Prosecutor General has to be independent while discharging the duties assigned to him. The fact that the Government may choose when to establish and award a bonus to the Prosecutor General and take a decision on the size of the bonus, permits the assumption that it will assess the activities of the Prosecutor General and decide whether to award him the bonus depending on the results of such assessment. The very existence of the possibility of making assessments alone is the grounds for conclusion that the executive is thus infringing on the independence of a constituent part of the judiciary, i.e. the prosecutors. Thus, this part of the impugned government resolution contradicts Paragraph 1 of Article 4 of the Law on the Prosecutor’s Office.

A different interpretation is to be offered of the impugned government resolution on the award of the bonuses to the heads, officials and employees of the prosecutor’s office. The laws establish separate social guarantees for officials of the prosecutor’s office (remuneration, pensions, compensations, etc.) taking into account the nature and contents of their duties.

In the petitioner’s opinion, some of the established safeguards not only fail to guarantee the independence of officials of the prosecutor’s office, but they also directly cause the preconditions for violation of their independence. In particular, it is the part of the impugned government resolution which regulates the procedure for the establishment of extra pay supplementing service remuneration to the employees of the prosecutor’s office and award of bonuses to them. The petitioner also claims that the law contains no grounds for broadening the concept of the remuneration of the aforementioned employees by including in it individual extra pay supplementing remuneration, and that the established procedure for the awarding of bonuses may drop a hint to employees of the prosecutor’s office as to which of their actions are welcome, and which are not.

In its assessment of the petitioner’s opinion, the Constitutional Court stresses that on 31 January 1995 the Seimas adopted a law, which approved the Statute of Service in the Prosecutor’s Office (Official Gazette Valstybės žinios, 1995, No. 15-345). This act and its appendices establish the composition of the remuneration of officials of the prosecutor’s office, their social guarantees, the procedure for giving incentives etc. Article 55 of this Statute stipulates that for exemplary performance officials of the prosecutor’s office may be awarded a bonus or a valuable gift to encourage them, and Article 66 prescribes that the work remuneration of officials shall consist of the positional salary and additional pay for years of service and ranks held. Furthermore, those officials who achieve excellent results in their service or while disclosing organised crimes and pursue public charges in cases on such crimes, also officials who work in standing groups on the investigation of organised crimes and operation groups, may be paid additional pay supplementing service remuneration.

Thus, the procedure for the awarding of additional pay and bonuses to officials of the prosecutor’s office established by the norms the of law, is a component of the internal employment relations of the prosecutor’s office, on which other branches of power may not exert any influence.

It should also be noted that the approval of the Statute of Service in the Prosecutor’s Office of the Republic of Lithuania resulted in the conflict of the said law and the Law of 3 February 1993 “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”, namely, the part of the said law which regulates the procedure for the establishment of the remuneration of employees of the prosecutor’s office and the awarding of bonuses to them. In the case of the conflict of laws, the norm of the law which was enacted later becomes effective. The earlier law entrusted the Government a general task to establish the service remuneration of employees of the prosecutor’s office, whereas the Statute of Service in the Prosecutor’s Office which was enacted by means of the law in effect at present, provides for the structure of the remuneration of employees of the prosecutor’s office as well as the grounds and procedure for giving incentives to them.

The laws in operation at present establish additional pay and extra pay supplementing service remuneration, as well as bonuses, to officials of the prosecutor’s office, and the Law on the Budget approves the funds allocated for the payment of such remuneration and bonuses. Therefore, the conclusion should be made that the provision of the impugned Government Resolution, setting forth that the Prosecutor General of the Republic of Lithuania shall take decision on the sizes of extra pay supplementing service remuneration and bonuses awarded to the heads, other officials and employees of the prosecutor’s office, and establishes the procedure for the awarding of bonuses to them, does not contradict Paragraph 1 of Article 4 and Article 35 of the Law on the Prosecutor’s Office as well as the Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

  1. On the compliance of the impugned Government Resolution with Article 53 of the Law on the National Audit Office of the Republic of Lithuania and the Republic of Lithuania’s Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

The petitioner requests the Constitutional Court to investigate whether the impugned Government Resolution is in compliance with Article 2 of the Law on the National Audit Office. The Constitutional Court has taken into consideration the fact that after the petitioner has submitted his request to the Court, the Seimas adopted the Republic of Lithuania’s Law on the National Audit Office (Official Gazette Valstybės žinios, 1995, No. 51-1234) and declared the Republic of Lithuania’s Law on the Department of National Audit null and void (Official Gazette Valstybės žinios, 1995, No. 51-1244). The provision of Article 2 of the Law on the Department of National Audit setting forth that “the National Audit Office shall be financed out from the State Budget of Lithuania” which was mentioned by the petitioner, in essence complies with Article 53 of the adopted Law on the National Audit Office. However, in comparison with the law which had been effective before, other essential amendments were introduced in the Law on the National Audit Office, therefore, all the argumentation submitted by the petitioner shall be assessed in this Ruling with consideration to the norms of the Law on the National Audit Office which is valid at present.

Article 134 of the Constitution says: “The National Audit Office shall supervise the legality of the management and utilisation of State property and the realisation of the State budget. The Auditor General shall give an account to the Seimas on the annual execution of the State Budget.” Paragraph 1 of Article 2 of the Law on the National Audit Office says that the National Audit Office is “the supreme institution of economic financial control accountable to the Seimas of the Republic of Lithuania which supervises the legality of holding and use of the state budget and the State Budget performance”. In pursuit of this goal, the officials of the National Audit Office control economic and financial activities of the Office of the Seimas, offices accountable to the Seimas and subdivisions rendering services to the Seimas, the Office of the President of the Republic of Lithuania and subdivisions rendering services to the President, the Government’s Chancellery, ministries, Government offices and other offices financed from the State Budget, also the Constitutional Court, courts, prosecutor’s offices and the police, as well as the activities of State-owned enterprises or those enterprises in which no less than half of voting shares are owned by the state, also the legality of State property privatisation and the distribution, use and repayment of all types of credits obtained on behalf of the State as well as credits taken with the Government guarantee.

To enable the National Audit Office to discharge all the functions vested in it objectively, the independence of this institution must be safeguarded. Though neither the Constitution nor the Law on the National Audit Office establish any specific safeguards guaranteeing the independence of the institution, however, the contents of the law gives the grounds for the conclusion that this law seeks to ensure the objectivity of the activities of officials of this institution and to protect them against any influence from outside. This follows from the rights and duties of officials of National Audit Office, prohibitions and limitations imposed on them as established in this Law.

In the petitioner’s opinion, the Government has violated the independence of officials of National Audit Office having provided for the award of bonuses to them in the impugned government resolution. The arguments submitted to support this standpoint maintain that the estimate of expenditure of this institution is approved by the Seimas. Therefore, “if the expenditure for pay for work included bonuses, they would be approved (allocated) by the Seimas, but not by the Government”.

The Constitution Court, in its assessment of the opinion of the petitioner, takes into consideration the fact that the Law on the National Audit Office (Article 55 thereof) provides for an independent source for giving incentives to employees of the National Audit Office. Thus, the right of the Auditor General to award bonuses to the officials and other employees of his institution is based on the Law of National Audit Office, and not the impugned government resolution. This right is also founded on the laws on labour as they give the head of the institution the right to give incentives to his employees. The internal relations among the heads of institution and its employees relating to the awarding of bonuses are based on the laws and they may not be interpreted as constituting the influence of other branches of power, institutions or individual persons on the employees of the institution. The possibility of awarding extra pay supplementing service remuneration to state auditors may not be interpreted as an outside influence on the functions discharged by them due to the same reasons and owing to the fact that these payments may only be assigned from the fund for remuneration for work.

Thus, the part of the impugned government resolution in which the Auditor General is asked to establish the procedure for the awarding of bonuses to the employees of his institution, and for the establishing of extra pay supplementing service remuneration, does not contradict Articles 2, 53 and 55 of the Law on the National Audit Office, also the Law “On the Service Remuneration of Judges of the Courts of the Republic of Lithuania, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the Department of National Audit”.

However, the impugned government resolution enacted a provision, stipulating that the Government shall take decisions on the size of extra pay supplementing service remuneration paid to the Auditor General and the bonuses awarded to him. It means that the Government reserves itself the right to give bonuses to the head of the institution of National Audit Office.

As it has been mentioned, the Constitution and the Law on the National Audit Office entrusts the National Audit Office to supervise the legality of the management and utilisation of State property and the realisation of the State budget. The Government enjoys particularly wide powers in these areas. Therefore, an assumption may be made that reserving itself the right to give bonuses to the Auditor General and take decision on the size of the bonus by virtue of the impugned resolution, the Government may exert influence on him. This contradicts the principle of independent activity of the Auditor General.

The Auditor General is not linked up to the Government by way of relations of employment or subordination. Quite to the contrary, his independence is illustrated by the procedure of his appointment (Paragraph 2 of Article 133 of the Constitution), his accountability to the Seimas (Paragraph 1 of Article 14 of the Law on the National Audit Office) etc.

In view of the aforementioned arguments, the conclusion should be made that the provision of the impugned government resolution, setting forth that the Government shall take decision on the sizes of the bonuses awarded to the Auditor General of the Republic of Lithuania, contradicts Article 134 of the Constitution and Paragraph 1 of Article 2 of the Law on the National Audit Office.

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

ruling:

  1. To recognise that the provision of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, setting forth that the Government of the Republic of Lithuania shall take decisions on the sizes of the bonuses awarded to the Chairperson (President) of the Supreme Court of Lithuania, the Prosecutor General of the Republic of Lithuania and the Auditor General of the Republic of Lithuania respectively contradicts Paragraph 2 of Article 109 and Article 134 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 46 of the Republic of Lithuania’s Law on Courts, Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on the Prosecutor’s Office and Paragraph 1 of Article 2 of the Republic of Lithuania’s Law on the National Audit Office.
  2. To recognise that the provision of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, setting forth that the Minister of Justice shall take decisions on the sizes of the bonuses awarded to the chairpersons and judges of the Court of Appeal of Lithuania, area and district courts and the Economic Court of the Republic of Lithuania contradicts Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 46 of the Republic of Lithuania’s Law on Courts.
  3. To recognise that the provision of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, setting forth that extra pay supplementing service remuneration shall be established to the Chairpersons and judges of the Court of Appeal of Lithuania, district and area courts and the Economic Court of the Republic of Lithuania, does not contradict the Constitution.
  4. To recognise that the provision of the Resolution of the Government of the Republic of Lithuania (No. 465) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 124) ‘On the Work Pay of Employees of the Courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of National Audit’ of 3 March 1993” of 31 March 1995, setting forth that heads of the institutions (the Prosecutor General and the Auditor General) listed in the resolution shall take decision on the sizes of extra pay supplementing service remuneration and bonuses given to other officials and employees and shall establish the procedure for the awarding of bonuses to them, does not contradict Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on the Prosecutor’s Office and Paragraph 1 of Article 2 of the Republic of Lithuania’s Law on the National Audit Office.

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

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

Justices of the Constitutional Court

 

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

 

Stasys Šedbaras                               Juozas Žilys