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On the procedure for appointing judges and on other norms of the Law on Courts

Case No. 16/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania

 

Vilnius, 21 December 1999

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Seimas members Juozas Bernatonis and Česlovas Juršėnas, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Jurgis Orlauskas, a senior consultant to the Law Department of the Office of the Seimas, and Vice-Minister of Justice Gintaras Švedas, acting as the representatives of the Seimas 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, on 24 November 1999, in its public hearing, considered case No. 16/98 subsequent to the petition submitted to the Constitutional Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Republic of Lithuania’s Law on Courts were in conformity with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109, Article 112 and Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 31 May 1994, the Seimas of the Republic of Lithuania adopted the Republic of Lithuania’s Law on Courts (Official Gazette Valstybės žinios, 1994, No. 46-851; hereinafter referred to as the Law) which was subsequently amended and supplemented. The petitioner—a group of Seimas members—requests an investigation into whether certain norms of the said law are in conformity with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109, Article 112 and Paragraph 1 of Article 114 of the Constitution.

II

The request of the petitioner is based on the following arguments.

The norms of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Law creates direct and indirect opportunities for the Minister of Justice to interfere with the activities of courts. Such provisions contradict the provision of Article 109 of the Constitution by which, while administering justice, judges and courts shall be independent.

In the opinion of the petitioner, the provision of Paragraph 2 of Article 33 of the Law by which the judges of local and regional courts shall be appointed by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges, that of Paragraph 3 of Article 33 by which presidents of local and regional courts shall be appointed from among the appointed judges by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges, that of Paragraph 4 of the same article by which deputy presidents of local and regional courts or court division chairpersons shall be appointed by the Minister of Justice, that of Paragraph 2 of Article 34 by which judges of the Court of Appeal and from them—its president shall be appointed by the President of the Republic on the proposal of the Minister of Justice and on the recommendation of the Council of Judges and with the approval of the Seimas, that of Paragraph 3 of Article 34 by which division chairpersons of the Court of Appeal from among the appointed judges shall be appointed by the Minister of Justice from the appointed judges on the proposal of the president of this court, contradict the norms of Paragraph 2 of Article 5, Item 11 of Article 84 and Paragraph 2 of Article 109 of the Constitution.

The petitioner is also of the opinion that the norms of Paragraphs 5, 6, 7 and 8 of Article 56 of the Law by which the judges of local and regional courts and those of the Court of Appeal, as well as presidents of the said courts, shall be dismissed from office by the President of the Republic on the proposal of the Minister of Justice, and that deputy and division chairpersons of the said courts shall be dismissed from office by the Minister of Justice on the recommendation of the Director of the Department of Courts, contradict the aforesaid norms of the Constitution.

The Constitution does not provide for the proposal of the Minister of Justice regarding appointment and dismissal of judges. The mandatory proposal of the Minister of Justice as established by these norms imposes a limitation on the powers of the President of the Republic. A part of the powers of the President of the Republic are taken over by the Minister of Justice. This violates the principle of subordination established in Article 96 of the Constitution by which the ministers, in directing the spheres of administration entrusted to them, shall be responsible to the President of the Republic. Paragraph 5 of Article 112 of the Constitution provides that a special institution of judges provided by law shall submit recommendations to the President concerning the appointment of judges, as well as their promotion, transference, or dismissal from office. Because of the impugned norms of the Law, in reality such an institution of judges submits recommendations to the Minister of Justice but never to the President of the Republic.

The petitioner maintains that the right of the Minister of Justice to submit the candidature for the Prosecutor General as established in Paragraph 1 of Article 66 of the Law might be judged to be interference of the executive with the activity of courts. The norm of this article granting the powers of the Legal Committee of the Seimas to submit the candidature of the Prosecutor General to the Seimas is also disputable as thereby the powers of the Seimas to appoint and dismiss chief officers of state institutions as established in Item 5 of Article 67 of the Constitution are limited.

The petitioner is of the opinion that the provisions of Paragraph 2 of Article 14, Paragraphs 1 and 2 of Article 251, Paragraph 1 of Article 26, Paragraph 1 of Article 30, Paragraph 1 of Article 36, Article 40, Paragraph 3 of Article 51, Paragraph 1 of Article 58, Paragraph 4 of Article 59, Paragraph 2 of Article 69 and Paragraph 2 of Article 73 of the Law create direct and indirect opportunities for the Minister of Justice to interfere with the activity of courts, therefore, they contradict Paragraph 2 of Article 109 of the Constitution.

In the opinion of the petitioner, the provision of Article 691 of the Law by which the Department of Courts shall act under the Ministry of Justice means that the said department becomes a constituent part of the executive.

The petitioners point out that most of the said norms of the Law contradict Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109, Article 112 and Paragraph 1 of Article 114 of the Constitution.

III

In the course of the preparation of the case for the judicial consideration, an explanation of Dr. G. Švedas, Vice-Minister of Justice, was received. It is pointed out therein that neither the Constitution nor the Law on the Procedure for the Enforcement of the Constitution provides for the ways by which the Seimas might implement the reform of courts, therefore, the Seimas may freely choose the ways and procedure of implementation of the reform. Before he appoints judges, the Minister of Justice, first of all finds out if the candidature of the person conforms to the requirements raised for a judge. On receiving a positive conclusion, the minister submits the proposal to the President of the Republic concerning appointment of this person as a judge. Then the President of the Republic may ask for advice from the Council of Judges concerning the appointment of this person as a judge. After the advice has been given to him, the President of the Republic adopts a decision regarding the appointment of the person as a judge. An analogous procedure is applied in cases when presidents of courts are appointed or when judges are dismissed from office. The President of the Republic may reject the proposal of the Minister of Justice even without any consultation with the Council of Judges. He is also not obligated to appoint a person as a judge or the president of a court even in cases when the Council of Judges approves of such an appointment. The norms of the Law regarding appointment and dismissal of judges are in compliance with the norms of the Constitution. It is pointed out in the explanation of the ministry that that in the Constitutional Court’s decision of 30 December 1994 the functions of the judge and the chairperson were singled out and it was interpreted therein that the independence guarantees regarding termination of powers are applicable “only to the Supreme Court justices but not to the President or Deputy President of this Court”. The proposal of the Minister of Justice does not violate the principle of subordination established in Article 96 of the Constitution, however, it is the obligation of the Minister of Justice to submit the proposal that implements the constitutional principles of subordination of ministers and their responsibility before the President of the Republic.

It is maintained in the explanation that the petitioner interprets the constitutional provision prohibiting “persons and institutions from exercising the powers of the President of the Republic” in an unreasonably expanded manner as the proposal of the Minister of Justice regarding appointment or dismissal of judges is neither an act of appointment nor that of dismissal of a judge neither by its content nor its form. The statement of the petitioner that “in reality this special institution of judges submits recommendations to the Minister of Justice but never to the President of the Republic” contradicts the reality as the request for the recommendation is submitted to the Council of Judges by the President of the Republic but not by the Minister of Justice, and the Council of Judges expresses its opinion for the President of the Republic.

The provision of Paragraph 1 of Article 66 of the Law on the procedure of the appointment of the Prosecutor General is in compliance with Item 5 of Article 67 of the Constitution. In its ruling of 1 October 1993, the Constitutional Court noted that “the Seimas has the right to establish the procedure for its activities by its Statute. The Seimas is free to make decisions within the limits established by the Constitution of the Republic of Lithuania”. It is provided for in the Statute of the Seimas that the directions of activities and the powers of the Seimas committees shall be established by the Statute and other laws, therefore, the obligation of the Legal Committee of the Seimas to submit a candidature of the Prosecutor General to the Seimas as established by the said article is in compliance with the Statute of the Seimas. Thus, Paragraph 1 of Article 66 of the Law on Courts is in compliance with Item 5 of Article 67 and Article 76 of the Constitution.

The independence of judges and courts is guaranteed only in the phase of implementation of justice. In the constitutional justice of Lithuania the independence of judges and courts and the content of its guarantees has extensively been discussed. The Constitution establishes only the main functions of branches of state power and the principles of their activities. Its systematic analysis permits asserting that the separation of powers may not be comprehended in its absolute sense. In this way a balance between different branches of state power is established whose guarantee is cooperation of powers and their independence in the course of performance of their constitutional functions. It is concluded in the explanation that the norms of the articles of the Law pointed out by the petitioner wherein the competence of the Minister of Justice is provided for are in conformity with the Constitution.

IV

In the course of the preparation of the case for the judicial consideration, written explanations of Assoc. Prof. Dr. V. Nekrošius, Vice-Dean of the Law Faculty of Vilnius University, and Assoc. Prof. Dr. T. Birmontienė, Head of the Constitutional Law Department of the Public Administration Faculty of the Law Academy of Lithuania, were received.

In the explanation of V. Nekrošius it is maintained that the impugned norms of the Law are in compliance with the Constitution.

In the opinion of T. Birmontienė, the impugned norms of Articles 33 and 34 of the Law, Paragraph 3 of Article 51, Paragraph 4 of Article 59, the norm of Paragraph 1 of Article 66 and the norm of Article 73 of the Law contradict the Constitution.

V

At the Constitutional Court hearing the representatives of the petitioner J. Bernatonis and Č. Juršėnas virtually reiterated the arguments set forth in the petition of the petitioner.

VI

At the Constitutional Court hearing the representative of the party concerned J. Orlauskas explained that the functions of the Ministry of Justice in the sphere of the control over judges’ conduct should not be judged to be a violation of the independence of judges. The representative of the party concerned G. Švedas virtually reiterated the arguments set down in the explanations of the Ministry of Justice to the Constitutional Court.

In the opinion of the representatives of the party concerned, the norms of the Law are in compliance with the Constitution.

The Constitutional Court

holds that:

The petitioner—a group of Seimas members—requests an investigation into whether Articles 14, 251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 of the Law are in compliance with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109, Article 112 and Paragraph 1 of Article 114 of the Constitution.

In the argumentative part of the petition, the petitioner specifies his request and points out that only individual paragraphs or certain norms of the said articles of the Law contradict the Constitution. The Constitutional Court will consider the compliance of the individual paragraphs and the norms set down therein with the Constitution, while taking account of the arguments set forth in the petition.

In addition, it needs to be noted that even though the Law was amended and supplemented later, the same wordings of the norms and provisions whose compliance with the Constitution was impugned by the petitioner at the Constitutional Court remain in force.

I

1. The petitioner impugns the compliance of the norms of the Law regulating relations of courts with other state institutions or officials with the Constitution. The constitutionality of these norms may be assessed only after taking account of the purpose and place of courts in the system of institutions of state authority established in the Constitution.

Under the Constitution, the state authority is organised and implemented on the basis of the principle of the separation of powers. This principle means that the legislature, the executive and the judiciary are separate, sufficiently independent and that there must be a balance between them. Every state institution enjoys the competence according to its purpose. The concrete content of such competence depends on to which branch of state power this institution belongs, its place among other state institutions, the relation of its powers with those of other institutions of state authority.

Paragraph 1 of Article 109 of the Constitution provides that in the Republic of Lithuania, the courts shall have the exclusive right to administer justice. Administration of justice is the function of courts and it determines the place of the judiciary in the system of institutions of state authority and the status of judges. Neither any other state institution nor any other state official may exercise this function.

2. Paragraph 2 of Article 109 of the Constitution provides: “While administering justice, judges and courts shall be independent.”

The independence of judges and courts is one of essential principles of a democratic state. The role of the judiciary in such a state is that, while administering justice, the courts must ensure the implementation of law expressed in the Constitution, the laws and other legal acts, to guarantee the rule of law and to protect human rights and freedoms.

It needs to be noted that the independence of judges and courts is not an end in itself: this is a necessary condition of protection of human rights and freedoms. Paragraph 1 of Article 30 of the Constitution provides that any person whose constitutional rights or freedoms are violated shall have the right to appeal to court. Paragraph 2 of Article 31 of the Constitution provides for the right for every indicted person to a fair and public hearing by an independent and impartial court. Therefore, such independence is not a privilege, but one of the principal duties of judges and court, 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 court (the Constitutional Court’s ruling of 6 December 1995).

3. Taking account of the strife for an open, just, and harmonious civil society and state under the rule of law entrenched in the Preamble to the Constitution, Article 5 and the norms of other articles of the Constitutions establishing the separation of powers, it is possible to distinguish two inseparable aspects of the principle of the independence of judges and courts.

This principle, first of all, means the independence of judges and courts when they administer justice. Under Article 109 of the Constitution, while considering cases, judges shall be independent and obey only the law. Paragraph 1 of Article 114 of the Constitution provides that institutions of state authority and governance, members of the Seimas and other officers, political parties, public organisations, and citizens shall be prohibited from interfering with the activities of a judge or the court, and violation of this shall incur liability provided for by law. The procedural independence of judges is a necessary condition of an impartial and fair consideration of a case.

On the other hand, judges and courts are not sufficiently independent if the independence of courts as the system of the institutions of the judiciary is not ensured. According to the principle of the separation of powers, all branches of power are autonomous, independent, and capable of counterbalancing each other. The judiciary, being independent, may not be dependent on the other branches of power also because of the fact that it is the only branch of power formed on the professional but not political basis. Only being autonomous and independent of the other branches of power, the judiciary may implement its function, which is administration of justice.

The full-fledgedness and independence of the judiciary presupposes its self-government. The self-government of the judiciary also includes organisation of the work of courts and the activities of the professional corps of judges.

The organisational independence of courts and their self-government are the main guarantees of the actual independence of the judiciary. A constitutional duty of the other institutions of authority is to respect the independence of courts established in the Constitution. It needs to be noted that the activities of courts are guaranteed by the Constitution, and the laws and other legal acts that are in conformity with the Constitution. A duty of the state is to create proper work conditions for courts. However, this does not mean that, in the course of establishing particular powers of the other state institutions as regards their relations with the judiciary, the denying of both the separation of powers established in the Constitution and the essence of the judiciary as a fully-fledged branch of power which acts independently from the other branches of power is allowed.

While ensuring the independence of judges and courts, it is of much importance to separate the activity of courts from that of the executive. The Constitution prohibits the executive from interfering with administration of justice, from exerting any influence on courts or from assessing the work of courts regarding the consideration of cases, let alone giving instructions as to how justice must be administered. Supervision of courts and application of disciplinary measures to judges must be organised in such a manner so that the actual independence of judges might not be violated.

Under the Constitution, the activity of courts is not and may not be considered an area of administration of any institution of the executive. Only the powers designated to create conditions for the work of courts may be granted to institutions of the executive. For their activities the courts are not accountable to any other institutions of power nor any officials. It is only an independent institutional system of courts that may guarantee the organisational independence of courts and the procedural independence of judges.

The material basis of the organisational independence of courts is their financial independence of any decisions of the executive. It needs to be noted that the financial independence of courts is ensured by such legal regulation when finances for the system of courts and every court are allocated in the state budget approved by law. The guarantee of the organisational independence of courts is one of essential conditions for ensuring human rights.

4. The judge is also obligated to be independent by his oath which he must make before taking office under Paragraph 6 of Article 112 of the Constitution. The judge swears allegiance to the Republic of Lithuania, swears to administer justice only pursuant to laws, to defend human rights, freedoms and legitimate interests, always act honourably, humanely and never let his behaviour cause damage to the title of a judge.

Under Article 115 of the Constitution, judges shall be dismissed from office according to the procedure established by law, in cases when their behaviour discredits their position as a judge, and when judgment imposed on them by court comes into force. Articles 74 and 116 of the Constitution also provide that for gross violation of the Constitution, breach of oath, or upon the disclosure of the commission of felony, the Seimas may remove from office the President and justices of the Supreme Court, as well as the President and judges of the Court of Appeal, in accordance with the procedure for impeachment. The behaviour of a judge connected with his performance of his immediate duties, as well as his activity not linked with his duties, may not cause any doubts as for his independence and impartiality.

Another guarantee of proper administration of justice by judges is their qualification: only persons who have life experience and high legal qualification may be appointed as judges. They must be of irreproachable reputation.

This means that special professional and ethical requirements are raised to judges. The judge must feel greatly responsible for the way he administers justice, i.e. the way he performs the duty established to him by the Constitution.

5. It needs to be noted that the principle of the independence of judges is also established in a number of international acts: the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, the Basic Principles on the Independence of the Judiciary endorsed by the General Assembly of the United Nations, the Recommendation on the Independence, Efficiency and Role of Judges adopted on 13 October 1994 by the Committee of Ministers of the Council of Europe, the Universal Charter of the Judge of 17 November 1999, etc.

The principle of the independence of judges and courts is established in all the constitutions of democratic states.

6. The principle of the independence of judges and courts established in Paragraph 2 of Article 109 of the Constitution is linked with the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provide for the right of everyone to a fair and public trial by an independent and impartial tribunal. The European Court of Human Rights, while considering cases regarding violations of Article 6 of the Convention, distinguishes objective and subjective elements of the right of to a fair and public trial by an independent and impartial tribunal. The former are of crucial importance from the standpoint of the case at issue. They are the guarantee of the separation of powers and corresponding regulation of interrelations between institutions of power. An analysis of the case-law of the European Court of Human Rights permits asserting that control over the activities of courts and judges or the cases when non-judicial structures exert influence on courts are considered violations of Article 6 of the Convention. For example, in its judgment of 24 November 1994 in the case Beaumartin vs. France (Series A, No. 296-B), the European Court of Human Rights held that only an institution that has full jurisdiction and satisfies a number of requirements, such as the independence of the executive and also of the parties, merits the designation “tribunal” within the meaning of Paragraph 1 of Article 6 of the Convention. Such a conclusion was also based on some other judgments delivered by the European Court of Human Rights.

It needs to be noted that in the case-law of the European Court of Human Rights also such factors as an opportunity for the other branches of power, especially for the executive, to give instructions to courts or cause transference of a judge to another post in case he does not follow certain directions, as well as conditions of remuneration of judges and a possibility for the executive to exert direct or indirect influence on courts, are regarded as factors exerting direct and indirect influence on courts.

7. The legal status of judges and courts should also be seen as being among the guarantees of the independence of judges and courts. According to the duties performed, judges may not deemed to be state servants. No one may demand that they follow a certain political guideline. The case-law judicial practice is formed only by courts, while applying the norms of law. The judge ensures human rights and freedoms in that he administers justice on the grounds of the Constitution and laws.

In its ruling of 6 December 1995, the Constitutional Court held that “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”.

In order to ensure the immunity of powers of judges, Article 115 of the Constitution provides that judges may be dismissed from offices only in cases provided for in the Constitution. The security of tenure is important so that the judge remains independent regardless of what political forces are in power, and he must never conform to a possible change of power of political forces.

In order to guarantee the personal immunity of a judge, it is provided for in Paragraph 2 of Article 114 of the Constitution 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. Articles 74 and 116 of the Constitution provide that for gross violation of the Constitution, breach of oath, or upon the disclosure of the commission of felony, the Seimas may remove from office the President and justices of the Supreme Court, as well as the President and judges of the Court of Appeal, in accordance with the procedure for impeachment.

The guarantees of social (material) nature of the principle of the independence of judges as established in Paragraph 2 of Article 109 of the Constitution are of no less importance. They mean an obligation of the state to ensure social (material) maintenance to judges which would be in conformity with the status of judges when they are in office, as well as after expiration of office. For instance Article 13 of the 17 November 1999 Universal Charter of the Judge provides that the judge must receive sufficient remuneration to secure true economic independence; the remuneration must not depend on the results of the judge’s work and must not be reduced during his or her judicial service.

It needs to be noted that, disclosing the content of the constitutional principle of the independence of judges and courts, in its ruling of 6 December 1995 the Constitutional Court held that “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”.

The assessment of the system of guarantees of the independence of judges and courts permits asserting that they are closely interrelated. It is impossible to assess the independence of judges and courts according to a single even though important element, therefore, it is universally recognised that in case any guarantee of the independence of judges and courts is violated, administration of justice might be damaged, there might appear a danger that neither human rights and freedoms will be ensured nor the rule of law be guaranteed.

Alongside, the Constitutional Court notes that the system of guarantees of the independence of judges and courts does not create any pre-conditions on the grounds of which judges could evade proper fulfilment of their duties, consider cases in an improper manner, act unethically with the people taking part in the case, violate human rights and dignity. Judges must protect the honour and prestige of their profession. Therefore, the system of self-regulation and self-government of the judiciary must ensure that judges perform their duties properly and that every unlawful or unethical action of a judge be properly assessed.

8. The independence of judges and courts is indivisible. When the activity of courts is regulated by law, it is not permitted that the concept of the Judiciary, which is established in Article 5 and other articles of the Constitution as an independent and fully-fledged branch of state power, be denied. Otherwise, the protection of human rights and freedoms entrenched in the Constitution would not be secured.

While considering this case, the Constitutional Court will take account of both aspects of the principle of the independence of judges and courts: first, the independence of judges and courts in the area of administration of justice; second, the independence of courts as institutions in the sphere of the implementation of judicial power.

II

On the compliance of Paragraphs 2, 3 and 4 of Article 33, Paragraphs 2 and 3 of Article 34 and Paragraphs 5, 6, 7 and 8 of Article 56 of the Law with the Constitution.

1. Paragraphs 2, 3 and 4 of Article 33 of the Law provide:

The judges of local and regional courts shall be appointed by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges.

Presidents of local and regional courts shall be appointed from among the appointed judges by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges.

Deputy presidents of local and regional courts or court division chairpersons, as well as mortgage judges of court mortgage divisions, shall be appointed from among the appointed judges by the Minister of Justice on the proposal of the President of a respective court.”

Paragraphs 2 and 3 of Article 34 of the Law provide:

Judges of the Court of Appeal and from them—its President shall be appointed by the President of the Republic on the proposal of the Minister of Justice and on the recommendation of the Council of Judges and with the approval of the Seimas.

Division chairpersons of the Court of Appeal shall be appointed by the Minister of Justice from the appointed judges on the proposal of the President of this court.”

Paragraphs 5, 6, 7 and 8 of Article 56 of the Law provide:

The President and other judges of the Court of Appeal shall be dismissed from office by the President of the Republic on the proposal of the Minister of Justice and on the recommendation of the Council of Judges, with the consent of the Seimas.

Division chairpersons of the Court of the Appeal shall be dismissed from office by the Minister of Justice on the proposal of the Director of the Department of Courts, or on his own initiative.

The presidents of other courts and other judges shall be dismissed from office by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges.

Deputy presidents or court division chairpersons of other courts, as well as mortgage judges of local court mortgage divisions shall be dismissed from office by the Minister of Justice on the proposal of the Director of the Department of Courts, or on his own initiative.”

The petitioner is of the opinion that the norms of Paragraphs 2 and 3 of Article 33, Paragraph 2 of Article 34 and those of Paragraphs 5 and 7 of Article 56 of the Law establishing the proposal of the Minister of Justice regarding appointment and dismissal of judges, presidents, deputy presidents and court division chairpersons of respective courts limit the powers of the President of the Republic and contradict Paragraph 2 of Article 5, Item 11 of Article 84 and Paragraph 2 of Article 109 of the Constitution.

The petitioner also doubts whether the right of the Minister of Justice to appoint and dismiss deputy presidents and court division chairpersons of respective courts as established in Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law is in conformity with the aforesaid articles of the Constitution.

Taking account of the reasoning set down in the petition of the petitioner, the Constitutional Court will investigate the compliance of the impugned norms only from the aspect pointed out by the petitioner.

2. Paragraph 2 of Article 109 of the Constitution provides that, while administering justice, judges and courts shall be independent.

It needs to be noted that while establishing the procedure for appointment, promotion of judges or that of their transference, i.e. regulating questions of their professional career, it is not permitted that the principle of the independence of judges and courts be violated.

3. Item 11 of Article 84 of the Constitution provides that the President of the Republic shall propose Supreme Court judge candidates to the Seimas, and, upon the appointment of all the Supreme Court justices, recommend from among them the Supreme Court President to the Seimas; appoint, with the approval of the Seimas, Court of Appeal judges, and from among them—the Court of Appeal President; appoint judges and presidents of regional and local courts, and change their places of office; in cases provided by law, propose the dismissal of judges to the Seimas.

The norms of Item 11 of Article 84 of the Constitution establishing the powers of the President of the Republic in the sphere of appointment and dismissal of judges are linked with Paragraph 5 of Article 112 of the Constitution wherein it is prescribed that a special institution of judges provided by law shall submit recommendations to the President of the Republic concerning the appointment of judges, as well as their promotion, transference, or dismissal from office. Under Article 30 of the Law, these functions are performed by the Council of Judges.

Thus, the powers of the President of the Republic in the sphere of formation of the judiciary are entrenched in Item 11 of Article 84 of the Constitution. It is an important element of the constitutional status of the Head of State. Any change of or any limitation on the powers of the President of the Republic in this sphere, as well as any establishment of such a procedure for the implementation of these powers when the actions of the President of the Republic would be bound by decisions of the institutions or officials that are not provided for in the Constitution, would mean a change of the constitutional competence of the President of the Republic.

4. Paragraph 2 of Article 5 of the Constitution provides: “The scope of powers shall be limited by the Constitution.”

An important constitutional principle is enshrined in this norm which must be taken account of when the powers of institutions of state authority both in the sphere of relations between state authority and individuals and that of interrelations between institutions of state authority are established. From this aspect interpreting the principle established in Paragraph 2 of Article 5 of the Constitution, in its ruling of 3 June 1999 the Constitutional Court held that this constitutional principle “in cases when the powers of a concrete branch of power are directly established in the Constitution, then no institution may take over these powers, while an institution whose powers are defined by the Constitution may neither transfer nor waive these powers. Such powers may neither be changed nor limited by law.” It is necessary that such requirements be followed in order to ensure the harmony of the functioning of institutions of state authority.

The Constitutional Court notes that while assessing the compliance of the impugned norms of the Law with Paragraph 2 of Article 5 of the Constitution, the conformity or non-conformity of the said norms of the Law with Item 11 of Article 84 of the Constitution must be considered.

5. In the established procedures of appointment and dismissal of judges the proposal of the Minister of Justice regarding appointment and dismissal of judges is provided for. The petitioner questions its compliance with the Constitution, therefore, it is necessary to ascertain the content of the proposal, as a legal institute, made by the Minister of Justice.

Analysing the powers of the Minister of Justice in the procedure of appointment of judges, it should be noted that under Paragraph 1 of Article 33 of the Law candidates to judges of local and regional courts and their presidents shall be designated by the Minister of Justice on the proposal of the Director of the Department of Courts. The Council of Judges chooses one candidature from among them and recommends that the President of the Republic appoint him as a judge.

Paragraph 2 of Article 33 of the Law provides that these judges shall be appointed by the President of the Republic on the proposal of the Minister of Justice, as recommended by the Council of Judges.

Thus, in the said paragraphs of Article 33 of the Law a respective procedure for appointment of judges is established. Comparing the norms of Paragraphs 1 and 2 of this article, it is possible to draw the conclusion that the concepts “candidates to judges <…> shall be designated by the Minister of Justice” and “proposal of the Minister of Justice” are not identical. The contents of these notions are not the same.

The proposal of the Minister of Justice provided for in the norms of Articles 33 and 34 of the Law is officially registered by a corresponding act. Such a proposal of the Minister of Justice gives rise to legal effects. In case there is not any proposal of the Minister of Justice, the President of the Republic may not appoint an individual as a judge. Under the Law, the proposal of the Minister of Justice is a necessary condition of implementation of the powers of the President of the Republic in the sphere of appointment of judges. The right of the Minister of Justice to give proposals to the President of the Republic regarding dismissal of respective judges from office as provided for in the norms of Paragraphs 5 and 7 of Article 56 of the Law acquires the same meaning.

Alongside, it needs to be noted that the legislature is entitled to establish as to what subjects shall choose candidatures of judges for the President of the Republic. This function may be established for the Minister of Justice, however, the right of the Minister of Justice to choose candidatures of judges is not binding on the President of the Republic.

Thus, not only the right of the Minister of Justice to nominate candidatures of judges but also that to submit the proposal to the President of the Republic regarding their appointment are established in the impugned norms of the Law. An analogous procedure for appointment of judges of the Court of Appeal and its President is established in Article 34 of the Law. Candidatures of judges of the Court of Appeal and its President are chosen by the Minister of Justice under the same procedure. These judges and the President from among them are appointed by the President of the Republic on the proposal of the Minister of Justice on the recommendation of the Council of Judges.

The norms of Paragraphs 5 and 7 of Article 56 of the Law establishing that judges of respective courts are dismissed from office on the proposal of the Minister of Justice should be assessed in the same manner.

6. As mentioned, the procedure of appointment of judges established in the Law may not violate the independence of the judiciary. Alongside, this procedure may not violate the balance of branches of state power (in the case at issue this is that between the President of the Republic and the Judiciary) as established in Article 5 of the Constitution.

While considering whether the norms of the paragraphs of articles of the Law pointed out in the petition which establish the competence of the Minister of Justice in the formation of courts, and decision of questions of internal organisation of courts, are in conformity with the Constitution, it is important to establish the legal status of a special institution of judges provided for in Paragraph 5 of Article 112 of the Constitution.

Taking account of the procedure of formation of courts established in the Constitution, as well as the constitutional regulation of the relations of the President of the Republic with the special institution of judges, it should be concluded that the special institution of judges pointed out in Paragraph 5 of Article 112 of the Constitution must give recommendation to the President of the Republic concerning all the questions of appointment of judges, those of their professional career, as well as those of their dismissal from office. The recommendation of this institution gives rise to legal effects: in case there is not a recommendation of this institution, the President of the Republic may not adopt decisions on appointment, promotion, transference of judges or those on their dismissal from office.

Thus, by the Constitution, the special institution of judges not only helps the President of the Republic to form courts but it also serves as a counter-balance to the President of the Republic, who is a subject of the executive, in the sphere of the formation of the corps of judges. On the other hand, the special institution of judges provided for in Paragraph 5 of Article 112 of the Constitution should be interpreted as an important element of self-government of the Judiciary which is an independent branch of state power.

After the proposal of the Minister of Justice has been established in the impugned paragraphs of articles of the Law, the recommendation of the Council of Judges becomes devoid of the meaning attached to it by the Constitution, as in such a case the actions of the President of the Republic are conditioned not only by the recommendation of the Council of Judges but also the proposal of the Minister of Justice which is not provided for in the Constitution. Such legal regulation violates the procedure of formation of corps of judges which is established in the Constitution and interferes with the competence of the President of the Republic and that of the special institution of judges provided for in the Constitution.

7. Item 11 of Article 84 of the Constitution defines the powers of the President of the Republic in the sphere of the formation of the judiciary.

The implementation of these issues is within the competence of the President of the Republic. A special institution of judges provided by law shall submit recommendations to the President concerning the appointment of judges, as well as their promotion, transference, or dismissal from office (Paragraph 5 of Article 112 of the Constitution).

The impugned norms of the Law provide that the President of the Republic may implement his constitutional rights only in case there is the proposal of the Minister of Justice. Thus, the proposal of the Minister of Justice conditions the implementation of the powers of the President of the Republic established in Item 11 of Article 84 of the Constitution, when the questions regarding professional career of judges are decided. Alongside, the principle established in Paragraph 2 of Article 5 of the Constitution by which the scope of powers shall be limited by the Constitution is violated.

Taking account of the arguments set forth, the conclusion should be drawn that the impugned norms of Paragraphs 2 and 3 of Article 33, Paragraph 2 of Article 34, Paragraphs 5 and 7 of Article 56 of the Law wherein the proposal of the Minister of Justice to appoint and dismiss judges of respective courts and their presidents is established contradict Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution.

8. Paragraph 4 of Article 33 of the Law provides that deputy presidents of local and regional courts or court division chairpersons, as well as mortgage judges of court mortgage divisions, shall be appointed from among the appointed judges by the Minister of Justice on the proposal of the president of a respective court. Under Paragraph 3 of Article 34 of the Law, division chairpersons of the Court of Appeal shall be appointed by the Minister of Justice from the appointed judges on the proposal of the President of this court.

Division chairpersons of the Court of the Appeal shall be dismissed from office by the Minister of Justice on the proposal of the Director of the Department of Courts, or on his own initiative (Paragraph 6 of Article 56 of the Law). Deputy presidents or court division chairpersons of other courts, as well as mortgage judges of local court mortgage divisions shall be dismissed from office by the Minister of Justice on the proposal of the Director of the Department of Courts, or on his own initiative (Paragraph 8 of Article 56 of the Law).

The petitioner maintains that the norms of the Law providing for the right of the Minister of Justice to appoint and dismiss deputy presidents and court division chairpersons of respective courts contradict the Constitution. The petitioner does not impugn the procedure for appointment and dismissal of mortgage judges of court mortgage divisions of local courts, therefore, the Constitutional Court will not consider this issue.

While deciding whether the right of the Minister of Justice to appoint and dismiss deputy presidents and court division chairpersons of regional courts and court division chairpersons of the Court of Appeal as established in the aforesaid norms of Articles 33, 34 and 56 of the Law, one should, first of all, take account of the status of deputy presidents and court division chairpersons of the said courts established in the Law and the powers of the Minister of Justice as an official of the executive in relations with the judiciary granted by the Law.

9. The principle of the independence of judges and courts entrenched in Paragraph 2 of Article 109 of the Constitution encompasses the organisational independence of courts as well. Neither an institution nor an official of the executive may interfere with the exercise of functions of courts or organise the internal work courts. As mentioned in this ruling, the activity of courts is not and may not be an area of administration of a ministry.

In the context of the question at issue, it needs to be noted that presidents of respective courts are appointed by the President of the Republic. Under Item 11 of Article 84 and Paragraphs 3 and 4 of Article 112 of the Constitution, the President of the Republic shall appoint the President of the Court of Appeal with the approval of the Seimas. Presidents of local, regional and specialised courts are also appointed by the President of the Republic.

Deputy presidents and court division chairpersons of local and regional courts, court division chairpersons of the Court of Appeal administer justice as judges, and, in addition, they are responsible for the sphere of the work organisation in courts that is within their competence. Under Paragraphs 1 and 2 of Article 43 of the Law, in the absence of the president of a regional court or that of the Court of Appeal, the division chairperson with seniority in service shall serve as the president, and in the absence of a local court president, his office shall be taken by his deputy.

Under the Law, individual organisational functions of court’s work are entrusted to deputy presidents or court division chairpersons of local and regional courts and court division chairpersons of the Court of Appeal, besides, in case of need they substitute presidents of the said courts. Therefore, taking account of the principle of the independence of judges and courts entrenched in Paragraph 2 of Article 109 of the Constitution, as well as the fact that the activity of courts in the course of their administration of justice is not and may not be an area of administration of the Minister of Justice, there are grounds to assert that after the powers of the Minister of Justice to appoint deputy presidents and court division chairpersons of respective courts had been established in the Law, conditions for the official of the executive were created to interfere with the appointment of judicial officials and with the activity of courts in general.

Taking account of these arguments, the conclusion should be drawn that the impugned norms of Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law contradict Paragraph 2 of Article 109 of the Constitution.

As mentioned, under Paragraph 5 of Article 112 of the Constitution, a special institution of judges provided by law shall submit recommendations to the President concerning all questions of professional career of judges. This is the Council of Judges. The legal regulation established in the Law when deputy presidents of courts and court division chairpersons are appointed by the Minister of Justice creates such a legal situation where a subject provided for in the Constitution, which is a special institution of judges, cannot accomplish its competence established for it by the Constitution.

Taking account of the reasoning set forth, the conclusion should be drawn that the impugned norms of Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law contradict Paragraph 5 of Article 112 of the Constitution.

10. In Item 11 of Article 84 and Article 112 of the Constitution the powers of the President of the Republic in the sphere of the formation of the judiciary are established.

An analysis of the content of Item 11 of Article 84 of the Constitution permits asserting that therein only the right of the President of the Republic to appoint the President of the Court of Appeal and presidents of regional and local courts is established. The said article does not contain any directly established right of the President of the Republic to appoint and dismiss deputy presidents and court division chairpersons of local and regional courts and court division chairpersons of the Court of Appeal.

The Constitution does not provide for the posts of deputy presidents of courts and court division chairpersons. The legislature is entitled to provide for the said posts by law and to establish a procedure for appointment of individuals to these posts. In establishing these posts, the legislature is bound by the principle of a balance of branches of power established in Article 5 and other articles of the Constitution and that of the independence of judges and courts established in Paragraph 2 of Article 109 of the Constitution.

Taking account of the reasoning set forth, it should be concluded that the impugned norms of Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law are in compliance with Item 11 of Article 84 of the Constitution.

11. Doubts are expressed in the petition concerning the compliance of Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law with Paragraph 4 of Article 89 of the Constitution providing that the powers of the President of the Republic may not be executed in any other cases, or by any other persons or institutions with the exception of those provided for in the Constitution.

The content of Paragraph 4 of Article 89 of the Constitution should be construed, while taking account of the legal regulation established in whole Article 89 of the Constitution. Paragraphs 1 and 2 of Article 89 of the Constitution provide for the conditions and subjects who act for the President of the Republic in the event that the President dies or is removed from office according to impeachment proceedings, or if the Seimas resolves that the President of the Republic is unable to fulfil the duties of office for reasons of health, and when the President is temporarily absent beyond the boundaries of the country or has fallen ill and by reason thereof is temporarily unable to fulfil the duties of office.

The impugned norms of Articles 33, 34 and 56 of the Law regulate relations of state authority in the sphere of the formation of the judiciary. The Constitutional Court has already held in this ruling that the impugned norms of the Law are in compliance with Item 11 of Article 84 of the Constitution establishing the right of the President of the Republic to appoint and transfer respective judges and presidents of courts or to submit proposal to the Seimas regarding their dismissal from office.

Taking account of these arguments, the conclusion should be drawn that the impugned norms of Paragraph 4 of Article 33, Paragraph 3 of Article 34 and Paragraphs 6 and 8 of Article 56 of the Law are in compliance with Paragraph 4 of Article 89 of the Constitution.

III

On the compliance of Paragraph 1 of Article 66 of the Law with the Constitution.

1. Paragraph 1 of Article 66 of the Law provides: “The Prosecutor General shall be appointed and dismissed from office by the Seimas of the Republic of Lithuania on the proposal of the Legal Committee of the Seimas. Candidatures for the post of the Prosecutor General shall be submitted to the Legal Committee of the Seimas by the President of the Supreme Court of Lithuania and the Minister of Justice.”

In the opinion of the petitioner, prosecutors are a part of the judiciary, therefore, the right of the Minister of Justice to propose candidatures to the post of the Prosecutor General should be judged to be interference with the activity of courts by the executive. In addition, this legal norm by which the powers to the Legal Committee of the Seimas to propose candidatures for the Seimas to the post of the Prosecutor General are granted imposes limitations on the powers of the Seimas to appoint and dismiss the chief officers of state institutions as established in Item 5 of Article 67 of the Constitution. The petitioner also maintains that this norm of the Law also contradicts Article 76 of the Constitution, because uncharacteristic functions, which are not provided for in the Statute of the Seimas, are established for the Seimas committee.

Taking account of the fact that not whole Paragraph 1 of Article 66 of the law is impugned but only the norms establishing the powers of the Legal Committee of the Seimas and the Minister of Justice concerning the appointment of the Prosecutor General, the Constitutional Court will only consider the compliance of only these norms of Paragraph 1 of Article 66 of the Law with the Constitution. The Constitutional Court will not consider the questions linked with the powers of the President of the Supreme Court regarding proposal of candidatures of the Prosecutor General to the Legal Committee of the Seimas.

2. Paragraph 1 of Article 118 of the Constitution provides that public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies.

Article 1 of the Republic of Lithuania’s Law on the Prosecutor’s Office provides for the following guidelines of public prosecutors: to initiate and conduct criminal prosecution, to control the activities of the interrogative bodies, to conduct a preliminary investigation, to pursue a public charge, to control the execution of a sentence, to coordinate the actions of the bodies of interrogation and preliminary investigation directed against crime, to defend, in the manner established by law, the lawful interests of the state and the violated rights of persons, to prepare material for instituting civil proceedings in a law court and participate during the consideration of the case in court. Thus, the Constitution and the laws provide that prosecutors perform specific functions characteristic of this institution only.

3. An analysis of the constitutional norms regulating the formation of institutions of state authority permits drawing the conclusion that when the appointment of the officials pointed out in the Constitution is regulated, as a rule, not only the subject who appoints them but also the one who has the right to propose or submit their candidatures is established therein.

The Constitution does not provide for the post of the Prosecutor General nor does it provide for the procedure for the appointment of this official. Under Paragraph 3 of Article 118 of the Constitution, the procedure for the appointment of public prosecutors and investigators and their status shall be established by law.

4. Paragraph 1 of Article 66 of the Law provides that the Prosecutor General shall be appointed and dismissed from office by the Seimas of the Republic of Lithuania on the proposal of the Legal Committee of the Seimas. It is also provided for therein that candidatures for the post of the Prosecutor General shall be submitted to the Legal Committee of the Seimas by the President of the Supreme Court of Lithuania and the Minister of Justice. Thus, it is possible to divide the procedure for the appointment of the Prosecutor General into two phases. In the first phase the President of the Supreme Court and the Minister of Justice propose the candidatures to the Legal Committee of the Seimas, while in the second phase the Legal Committee of the Seimas submits to the Seimas the candidature of the Prosecutor General from among the proposed candidatures.

The principle of the independence of judges and courts is entrenched in Paragraph 2 of Article 109 of the Constitution. Under Paragraph 1 of Article 114 of the Constitution, institutions of state authority and officials shall be prohibited from interfering with the activities of a judge or the court. Thus, the purpose of these norms is to protect judges and courts that implement the function of justice. Prosecutors are not judges and they do not administer justice. The Constitution entrusts them with a specific function which may not be identified with implementation of judicial power. The impugned norm of Paragraph 1 of Article 66 of the Law does not regulate the questions of the activities of judges and courts, therefore, it should be concluded that the said norm of the Law is in compliance with Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution.

5. Item 5 of Article 67 of the Constitution provides that the Seimas shall form State institutions provided by law, and shall appoint and dismiss their chief officers.

The petitioner maintains that the norm of Paragraph 1 of Article 66 of the Law by which the Legal Committee of the Seimas is empowered to submit to the Seimas the candidature of the Prosecutor General imposes limitations on the powers of the Seimas to appoint and dismiss the chief officers of state institutions as established in Item 5 of Article 67 of the Constitution.

As mentioned, Paragraph 1 of Article 66 of the Law provides that the Prosecutor General shall be appointed and dismissed from office by the Seimas of the Republic of Lithuania on the proposal of the Legal Committee of the Seimas. Thus, the impugned norm of the Law provides for the right of the Seimas to appoint and dismiss the chief officer of a state institution. This official is appointed under procedure established by the Law.

Taking account of the aforesaid reasoning, it should be concluded that the norms of Paragraph 1 of Article 66 of the Law wherein the powers of the Minister of Justice and the Legal Committee of the Seimas in connection with the appointment of the Prosecutor General are established are in compliance with Item 5 of Article 67 of the Constitution.

Alongside, the Constitutional Court notes that the norms of Paragraph 1 of Article 66 of the Law wherein the powers of the Legal Committee of the Seimas in connection with the appointment of the Prosecutor General are established provide for the functions uncharacteristic of a committee of the Seimas.

6. Article 76 of the Constitution provides that the structure and procedure of activities of the Seimas shall be determined by the Statute of the Seimas which shall have the power of law.

This article of the Constitution means that the Seimas has the right to determine its structure and procedure of activities by itself. The structure of the Seimas is a system of its internal divisions established in the Statute of the Seimas which must ensure the working capacity of the parliament and its effective functioning.

Article 76 of the Constitution also provides for the form of the legal act by which the internal organisation and procedure of activities of the Seimas are regulated, which is the Statute of the Seimas. Under the Constitution, the Statute of the Seimas shall have the power of law.

In the opinion of the petitioner, the norm of the Law by which functions not provided for in the Statute of the Seimas are entrusted with the committee of the Seimas contradicts Article 76 of the Constitution by which the procedure of activities of the Seimas shall be determined by the Statute of the Seimas.

It needs to be noted that the Constitution does not provide for the functions of the committees of the Seimas. This question is regulated in the Statute of the Seimas. The petitioner grounds the non-compliance of the impugned norm of Paragraph 1 of Article 66 of the Law with the Constitution on the fact that this norm is not coordinated with the norms of the legal act of the same legal power—the Statute of the Seimas. The Constitutional Court notes that non-coordination of the norms between legal acts of the same power may indicate inconsistency and even impropriety of legal regulation, but in itself this may not serve as grounds for recognition that one of these acts contradicts the Constitution.

Taking account of the reasoning set forth, the conclusion should be drawn that the norms of Paragraph 1 of Article 66 of the Law wherein the powers of the Minister of Justice and the Legal Committee of the Seimas in connection with the appointment of the Prosecutor General are established are in compliance with Article 76 of the Constitution.

IV

On the compliance of Paragraph 2 of Article 14, Paragraphs 1 and 2 of Article 251, Paragraph 1 of Article 26, Paragraph 1 of Article 30, Paragraph 1 of Article 36, Article 40, Paragraph 3 of Article 51, Paragraph 2 of Article 58, Paragraph 4 of Article 59, Paragraph 2 of Article 69 and Paragraph 2 of Article 73 of the Law with the Constitution.

1. The petitioner is of the opinion that the provisions of Paragraph 2 of Article 14, Paragraphs 1 and 2 of Article 251, Paragraph 1 of Article 26, Paragraph 1 of Article 30, Paragraph 1 of Article 36, Article 40, Paragraph 3 of Article 51, Paragraph 2 of Article 58, Paragraph 4 of Article 59, Paragraph 2 of Article 69 and Paragraph 2 of Article 73 of the Law create direct and indirect opportunities for the Minister of Justice to interfere with the activities of courts, therefore, they contradict Paragraph 2 of Article 109 of the Constitution.

2. Paragraph 2 of Article 14 of the Law provides: “The number of judges in the divisions of civil and criminal cases of regional courts and the Court of Appeal shall be set by the Minister of Justice on the proposal of the Director of the Department of Courts under the Ministry of Justice (hereinafter referred to as the Department of Courts), after the consideration of the opinion of the president of a respective court. In exceptional cases presidents of the said courts shall have the right for the term of the consideration of particular cases to transfer a judge from one division to another division of the same court on their own initiative.”

The petitioner doubts whether the aforesaid provisions of Paragraph 2 of Article 14 of the Law by which the number of judges in the divisions of civil and criminal cases of regional courts and the Court of Appeal shall be set by the Minister of Justice on the proposal of the Director of the Department of Courts, after the consideration of the opinion of the president of a respective court, is in conformity with Paragraph 2 of Article 109 of the Constitution.

Taking account of the arguments of the petitioner, the Constitutional Court will investigate the compliance of not whole Article 14 of the Law but only that of the impugned norms of Paragraph 2 of the said article with the Constitution. When the compliance of the impugned norm of the Law with the Constitution is assessed, it is important to establish whether the right of the Minister of Justice to set the number of judges in divisions of civil and criminal cases of regional courts and the Court of Appeal violates the constitutional principle of the independence of judges and courts and whether such legal regulation creates pre-conditions for the officials of the executive to interfere with the activity of courts.

3. Under the Law, the work of a respective court shall be organised by the president of that court. The assignment of judges in the internal structures of the court also is within this sphere of activity. Under the Law, the number of judges of court divisions of respective courts shall be set by the Minister of Justice on the proposal of the Director of the Department of Courts, after the consideration of the opinion of the president of a respective court. Thus, the Law grants the right to the official of the executive to decide the questions of internal organisation of court activities.

The fact that the decision of the questions of organisation of internal activities of courts is established for the Minister of Justice should be regarded as violating the independence of the judiciary and as creating pre-conditions for an official of the executive to interfere with the organisation of internal activity of courts, and with the activity of courts in general.

Taking account of the reasoning set forth, it should be concluded that the impugned norms of Paragraph 2 of Article 14 of the Law contradict Paragraph 2 of Article 109 of the Constitution.

4. Paragraphs 1 and 2 of Article 251 of the Law provide:

The Ministry of Justice together with the Department of Courts shall organise and coordinate a consistent training of judges. When questions of promotion of judges are considered, account is taken of the intensity of improvement of professional skills of judges.

The forms of improvement of professional skills of judges shall be compulsory and optional. The compulsory forms, except for those designated to the judges of the Supreme Court of Lithuania, shall be determined by a directive of the Minister of Justice.”

In the opinion of the petitioner, the norms of Paragraphs 1 and 2 of Article 251 of the Law wherein it is established that the Ministry of Justice shall organise and coordinate the training of judges, which is taken account of when questions of promotion of judges are considered, as well as the fact that the compulsory forms of improvement of professional skills of judges shall be determined by a directive of the Minister of Justice, contradict Paragraph 2 of Article 109 of the Constitution and create pre-conditions for the Minister of Justice to interfere with the activity of courts.

Taking account of the reasoning set forth in the petition, the Constitutional Court will consider only the impugned norms of Paragraphs 1 and 2 of Article 251 of the Law establishing the powers of the Ministry of Justice to organise and coordinate the training of judges and those of the Minister of Justice to determine the compulsory forms of improvement of professional skills of judges.

The impugned norms of the Law regulate the organisation of improvement of professional skills of judges. The Constitutional Court notes that appropriate preparedness of judges, improvement of their knowledge and professional skills are an important pre-condition of the guarantee of the proper activity of courts. The Ministry of Justice may be empowered by law to create conditions for judges to raise their qualification, therefore, it may be granted powers necessary to organise and coordinate a consistent training of judges.

The determination of the compulsory forms of training should be linked with particular professional requirements raised to judges. All judges must have equal opportunities to improve and raise their qualification. The powers of the Ministry of Justice to organise and coordinate the training of judges pre-suppose an obligation of this ministry to guarantee equal conditions for judges to improve their knowledge. Thus, the Ministry of Justice, which is granted powers to organise and coordinate a consistent training of judges, may also be granted the powers to determine the compulsory forms of training equal to all judges. The competence of the Ministry of Justice to organise and coordinate a consistent training of judges and the competence of the Minister of Justice to determine the compulsory forms of improvement of professional skills of judges, which is established by law, do not violate the constitutional principle of the independence of judges and courts.

Taking account of the reasoning set forth, it should be concluded that the impugned norms of Paragraphs 1 and 2 of Article 251 of the Law wherein it is established that the Ministry of Justice shall organise and coordinate the training of judges, as well as the fact that the compulsory forms of improvement of professional skills of judges shall be determined by a directive of the Minister of Justice, are in compliance with Paragraph 2 of Article 109 of the Constitution.

5. Paragraph 1 of Article 26 of the Law provides: “The Lithuanian Judges’ Examination Commission shall be formed for the term of three years from six persons. The Council of Judges and the Minister of Justice shall appoint three persons each from judges and legal scholars as members of the Judges’ Examination Commission. The Chairperson of the Judges’ Examination Commission shall be appointed by the Minister of Justice.”

These norms of the Law regulate the procedure of formation of the institution the purpose of which is to test the legal qualification of persons before they are appointed as judges. Under Article 28 of the Law, the oral and written examinations of judges shall be taken by persons prior to their appointment as judges. Thus, the Judges’ Examination Commission is charged to perform a prior check of legal qualification of persons who wish to become judges.

The examinations commission is formed for the term of three years from six persons. It is evident that half the members of the commission are appointed by the Council of Judges and another half—by the Minister of Justice from judges and legal scholars. The Chairperson of the Commission is appointed by the Minister of Justice. Thus, this institution is formed by representatives of two branches of power, i.e. those of the executive and judiciary.

The Judges’ Examination Commission tests the knowledge of persons prior to their appointment as judges. It is not empowered to test the knowledge of persons who already work as judges. Thus, the norms of Paragraph 1 of Article 26 of the Law wherein the powers of the Minister of Justice to appoint the members of the Judges’ Examination Commission and the chairperson of this commission are established do not violate the constitutional principle of the independence of judges and courts.

Taking account of the arguments set forth, it should be concluded that the impugned norms of Paragraph 1 of Article 26 of the Law are in compliance with Paragraph 2 of Article 109 of the Constitution.

6. Paragraph 1 of Article 30 provides: “The Council of Judges shall consist of fourteen judges: five judges elected at the general meeting of judges, one judge elected by the Association of Judges of the Republic of Lithuania, two judges appointed by the President of the Republic, two judges appointed by the Minister of Justice, and ex officio the President of the Supreme Court of Lithuania, court division chairpersons of the said court, and the President of the Court of Appeal.”

The petitioner doubts whether the provision by which the Minister of Justice appoints two judges as members of the Council of Judges is in conformity with Paragraph 2 of Article 109 of the Constitution.

It needs to be noted that the Minister of Justice appoints only two judges as members of the Council of Judges. The same number of members of the Council of Judges is appointed by the President of the Republic. Five judges are elected at the general meeting of judges and one judge is elected by the Association of Judges of the Republic of Lithuania as members of the Council of Judges. Besides, the President of the Supreme Court of Lithuania, court division chairpersons of the said court, and the President of the Court of Appeal are ex officio members of the Council of Judges.

Thus, under the Law, the Council of Judges is formed by the Association of Judges of Lithuania, the general meeting of judges, the Minister of Justice, the President of the Republic, and respective members of the judiciary are its ex officio members. The representatives of the executive, i.e. the President of the Republic and the Minister of Justice, appoint only four of the fourteen members of the Council of Judges. Thus, there are not any legal grounds to assert that the norms of Paragraph 1 of Article 30 of the Law establishing the powers of the Minister of Justice in the sphere of formation of a special institution of judges provided for by law contradict the independence of judges and courts.

Taking account of the arguments set forth, it should be concluded that Paragraph 1 of Article 30 of the Law is in compliance with Paragraph 2 of Article 109 of the Constitution.

7. Paragraph 1 of Article 36 of the Law provides that local court judges shall be appointed for the first time for the term of five years. Upon expiry of this term, local court judges, on the proposal of the Minister of Justice and on the recommendation of the Council of Judges, shall be appointed as judges until they reach 65 years of age without taking the examinations.

The petitioner is of the opinion that the proposal of the Minister of Justice provided for in this norm creates pre-conditions for his interference with the activity of courts.

As mentioned, it is established in the impugned norm of the Law that local court judges shall be appointed for the first time for the term of five years. The said term should be construed as the “term of powers” of the judge. Under Item 2 of Paragraph 1 of Article 115 of the Constitution, court judges shall be dismissed from office upon expiration of their powers. Upon expiration of the five-year term, provided the person has proved by his performance and conduct to be fitting for the work of a judge, the question of his appointment for the longer term of powers as pointed out in the Law is decided. Therefore, it is quite understandable that the Law contains the norm by which upon the expiration of this term judges shall be appointed until they reach 65 years of age without the prior passage of the examinations.

The Constitutional Court notes that Article 112 of the Constitution provides that a special institution of judges provided by law shall submit recommendations to the President of the Republic concerning the appointment of judges. Under the Law this is the Council of Judges. As mentioned, the Constitution does not provide for the proposal of the Minister of Justice concerning appointment of judges, therefore, such a proposal may not condition the implementation of powers of the President of the Republic.

The Constitutional Court has already noted in this ruling that the impugned norms of Paragraphs 2 and 3 of Article 33, Paragraph 2 of Article 34 and Paragraphs 5 and 7 of Article 56 of the Law providing for the proposal of the Minister of Justice regarding appointment and dismissal of judges contradict Item 11 of Article 84, Paragraph 2 of Article 5, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution.

Taking account of the arguments set forth, the conclusion should be drawn that the norms of Paragraph 1 of Article 36 of the Law containing the proposal of the Minister of Justice to appoint a judge after the expiration of his five-year term of office contradict Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution.

8. Article 40 of the Law provides: “Presidents of local courts shall organise the work process of judges in such a manner that they would have equal amount of work, control the administrative activity of these courts (judges), control as to how judges adhere to the principles of ethics and the work of judges in controlling the work of bailiffs’ offices. The rules for distribution of cases to judges, with the exception of the Supreme Court, shall be confirmed by the Minister of Justice on the proposal of the Director of the Department of Courts.”

In the opinion of the petitioner, the provision of this article by which the rules for distribution of cases to judges shall be confirmed by the Minister of Justice contradict Paragraph 2 of Article 109 of the Constitution.

It needs to be noted that the purpose of distribution of cases which is accomplished by the president of the court under approved rules is to make sure that the judges would have equal amount of work. Various ways of distribution of cases to judges are possible.

The rules are a normative act. Their purpose is to make sure that the same criteria of distribution of cases were applied in all courts of Lithuania. Taking account of the arguments set forth, the conclusion should be drawn that the impugned norm of Article 40 of the Law is in compliance with Paragraph 2 of Article 109 of the Constitution.

9. Paragraph 3 of Article 51 of the Law provides: “A judge of a local or regional court, that of the Court of Appeal and the Supreme Court of Lithuania, in case he agrees, may, by means of a decree of the President of the Republic, be delegated for the term of up to one year to the structures of the Supreme Court of Lithuania, those of the Ministry of Justice or the Department of Courts the activities of which are directly linked with the organisation of the activities of courts and their supervision. For the term of the delegation, the powers of the delegated judge shall be suspended. All social guarantees of the delegated judge, including his service remuneration and employment period shall be preserved. His service remuneration shall be paid by the same court from which the judge has been delegated.”

The petitioner questions the conformity of the norms of Paragraph 3 of the aforementioned article concerning suspension of the powers of the judge and his delegation to the structures of the Ministry of Justice and the Department of Courts with Paragraph 2 of Article 109 of the Constitution. The petitioner does not question the delegation of the judge to the structures of the Supreme Court, therefore the Constitutional Court will not investigate this question.

Paragraph 2 of Article 109 of the Constitution provides that, while administering justice, judges and courts shall be independent. Assessing the compliance of the impugned norms with Paragraph 2 of Article 109 of the Constitution, it needs to be noted that Paragraph 1 of Article 113 of the Constitution provides that judges may not hold any other elective or appointive posts, and may not be employed in any business, commercial, or other private institution or company. They are also not permitted to receive any remuneration other than the remuneration established for judges as well as payment for educational or creative activities. The purpose of these norms of the Constitution is to ensure the independence and impartiality of courts.

The delegation of a judge means that for some time he holds another office, i.e. not that of a judge, in an institution of the executive. However, the provisions of Paragraph 1 of Article 113 of the Constitution prohibit delegating judges to the structures of the executive. Under the Constitution, the President of the Republic does not have any powers to delegate a judge to the structures of the Ministry of Justice or the Department of Courts. Neither does the Constitution provide for an opportunity to temporarily suspend the powers of a judge. After he has been delegated to structures of the executive, the powers of a judge shall be suspended (Paragraph 3 of Article 51 of the Law). This means that the legal status of a judge is virtually changed: it becomes similar to that of a state servant, therefore the separation of the judiciary from the executive as established in the Constitution is violated and the balance of branches of state power established in Article 5 of the Constitution is denied.

Taking account of the arguments set forth, it should be concluded that the norms of Paragraph 3 of Article 51 of the Law wherein it is established that a judge of a local or regional court, that of the Court of Appeal and the Supreme Court of Lithuania, in case he agrees, may, by means of a decree of the President of the Republic, be delegated for the term of up to one year to the structures of the Ministry of Justice or the Department of Courts and that for the term of the delegation the powers of the delegated judge shall be suspended contradict Paragraph 1 of Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 113 of the Constitution.

10. Paragraph 2 of Article 58 of the Law provides: “The Court of Honour of Judges of Lithuanian courts, with the exception of the Supreme Court, shall be formed from five members for the term of two years. The President of the Republic shall appoint three members thereof on the proposal of the Minister of Justice and two members from judges with the consent of the Council of Judges. The judges appointed as members of the Court of Honour of Judges shall be relieved from the duties of a judge for the term of their powers.”

In the opinion of the petitioner, the norm of Article 58 of the Law by which the right of the Minister of Justice to give his proposal regarding appointment of members of the Court of Honour of Judges is provided for contradicts Article 109 of the Constitution. Even though in his petition the petitioner indicates Paragraph 1 of Article 58, however, the impugned norm is set down in Paragraph 2 of the same article. Therefore, the Constitutional Court, taking account of the reasoning set forth in the petition of the petitioner, will investigate the compliance of the norm set down in Paragraph 2 of Article 58 wherein the proposal of the Minister of Justice to appoint three members of the Court of Honour of Judges is established with the Constitution.

The organisational independence of courts, the self-regulation and self-government of the judiciary are elements of the principle of the independence of judges and courts entrenched in Paragraph 2 of Article 109 of the Constitution. Under the Law, a disciplinary action shall be brought against the judges before the Court of Honour of Judges. The Court of Honour of Judges, upon considering and determining a disciplinary action against judges, may acquit a judge, confine itself to the hearing of the case, reprove him, issue a reprimand, issue a severe reprimand, to recommend to dismiss him from office or impose other sanctions on him. As it was held in this ruling of the Constitutional Court, the activity of courts is not within the sphere of administration of the Minister of Justice, therefore, the powers to participate in the formation of the Court of Honour of Judges may not be established as being within his competence. Otherwise, the concept of the Court of Honour of Judges as an institute of self-government and self-regulation of the judiciary would be denied.

Taking account of the arguments set forth, it should be concluded that the norm of Paragraph 2 of Article 58 of the Law providing for the proposal of the Minister of Justice regarding appointment of judges to the Court of Honour of Judges contradicts Paragraph 2 of Article 109 of the Constitution.

11. Paragraph 4 of Article 59 of the Law provides: “A disciplinary action against the president of a local or regional court and the Court of Appeal, their deputies, division chairpersons and other judges may be instituted by the President of the Supreme Court and the Minister of Justice on the proposal of the Director of the Department of Courts or on his own initiative. The President of the Republic may, on the proposal of the Minister of Justice, remove the judge against whom a disciplinary action has been instituted from office until the outcome of the case becomes clear.”

The petitioner is of the opinion that the norm set down in this article by which the Minister of Justice may institute a disciplinary action against judges either on his own initiative or on the proposal of the Director of the Department of Courts, and the fact that the President of the Republic may, on the proposal of the Minister of Justice, remove the judge against whom a disciplinary action has been instituted from office, contradict Paragraph 2 of Article 109 of the Constitution.

Taking account of the reasoning pointed out in the petition of the petitioner, the Constitutional Court will investigate Paragraph 4 of Article 59 of the Law only to the extent that the right of the Minister of Justice is established to institute a disciplinary action against the president of a local or regional court and the Court of Appeal, their deputies, division chairpersons and other judges, as well as to propose to remove the judge against whom a disciplinary action has been instituted from office until the outcome of the case becomes clear.

Special requirements are raised to judges. While administering justice, judges must be impartial, independent and conform only to the Constitution and the law. They must act in such a manner so that the principles of justice would not be violated. Judges must not yield to the influence of state institutions or officials, or that of public organisations or individual citizens. A judge must be of irreproachable behaviour. Such requirements for judges are necessary as they help ensure the right of an individual to judicial defence. Adherence to these requirements guarantees proper administration of justice.

It is provided for in the Law that a disciplinary action may be instituted against a judge for negligence at work, malfeasance discrediting the court, behaviour discrediting the title of a judge.

Under the law, behaviour discrediting the title of a judge is a clear negligent performance of a particular duty of the judge or failing to perform it without valid excuse. In addition, if the judge, within one year of the imposition of the penalties on him on the grounds referred to in Items 1–3 of Paragraph 1 of Article 59 of the Law, performs his duties in a negligent manner or commits malfeasance discrediting the court for which the Court of Honour of Judges imposes a penalty on him, or when the judge is engaged in work activity prohibited by law, such behaviour of his shall also be qualified as discrediting the title of a judge.

Attempting to guarantee the proper work of courts, the legislature provided for the responsibility for actions incompatible with the office of a judge. The Law provides that disciplinary sanctions are imposed by the Court of Honour of Judges.

Paragraph 4 of Article 59 of the Law provides for the right of the Minister of Justice to institute a disciplinary action against the president of a local or regional courts and the Court of Appeal, their deputies, division chairpersons either on his own initiative or on the proposal of the Director of the Department of Courts. The establishment of such a right by law creates legal pre-conditions for the official of the executive to exert influence on the activity of courts and violates the constitutional principle of the independence of judges and courts. The norm of Paragraph 4 of Article 59 of the Law providing for the proposal of the Minister of Justice to remove the judge against whom a disciplinary action has been instituted from office should be assessed in an analogous manner. Taking account of the provisions of Paragraph 5 of Article 112 of the Constitution, only a special institution of judges but never an institution or an official of the executive may be granted the right of such a proposal.

Alongside, it needs to be noted that such assessment of the said norms of the Law does not deny the right of the legislature to determine the powers of the Minister of Justice regarding initiation of institution of a disciplinary action against judges.

Taking account of the arguments set forth, it should be concluded that the impugned norms of Paragraph 4 of Article 59 of the Law by which the right of the Minister of justice is established to institute a disciplinary action against the president of a local or regional court and the Court of Appeal, their deputies, division chairpersons and other judges, as well as to propose to remove the judge against whom a disciplinary action has been instituted from office until the outcome of the case becomes clear contradict Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution.

12. Paragraph 2 of Article 69 of the Law provides: “The operation of local and regional courts and the Court of Appeal shall be guaranteed by the Minister of Justice, adhering to the principles of the independence of the activities of courts and judges provided herein and of the courts. The Minister of Justice shall arrange for the improvement of the qualifications of judges, the financial and material-technical supply of local and regional courts and the Court of Appeal.”

The petitioner maintains that the norms provided in the said article contradict Paragraph 2 of Article 109 of the Constitution.

As mentioned, the Law provides that the proper working conditions in courts shall be guaranteed by the state. The competence of the Minister of Justice may not exceed the limits of guaranteeing the proper working conditions of courts. In case this norm is treated in a different manner, the work organisation sphere of courts may be interfered with and the concept of the judiciary as an independent power would be denied.

The impugned Paragraph 2 of Article 69 of the Law prescribes that the Minister of Justice shall arrange for the improvement of the qualifications of judges, the financial and material-technical supply of local and regional courts and the Court of Appeal. It has already been considered in this ruling whether the norms establishing the powers of the Minister of Justice to arrange for the improvement of professional skills of judges are in compliance with the Constitution and it was held that they are in compliance with Paragraph 2 of Article 109 of the Constitution.

Analysing the norm of Paragraph 2 of Article 69 of the Law by which the powers of the Minister of Justice to arrange for the financial and material-technical supply of local and regional courts and the Court of Appeal, one has to note that the concept “arrange for the financial and material-technical supply of courts” is legally undetermined and may be interpreted in various ways. It may be understood not only as reflecting the powers of the Minister of Justice to find out as to how much finances are needed for the activity of courts and not only as his duty to make sure that these finances were provided in the state budget, and not only as reflecting the duty of the Minister of Justice to be present in the Seimas when the questions of allocation of the assignations provided for courts in the draft state budget are discussed. The concept “arrange for the financial and material-technical supply of courts” which is employed in the Law may also be interpreted that the Minister of Justice is granted the right to allocate the assignations provided for in the state budget to individual courts by himself. Such understanding of this concept employed in the Law is confirmed by the present regulation of the financing of courts as well: the law on the state budget does not provide as to how much finances are allocated to every individual court (with the exception of the Supreme Court of Lithuania). Only the total amount designated for the whole system of courts is pointed out therein. Thus, it is not the Seimas that distributes finances to individual courts by approving the law on state budget but institutions of the executive. The legal regulation when it is not the Seimas that distributes finances to individual courts by approving the law on state budget but institutions or officials of the executive is not in line with the constitutional principle of the separation of the executive and the judiciary and that of the independence and autonomy of these branches of power, and creates an opportunity for the executive to exert influence on the activity of courts. The Constitutional Court notes that the principle of the independence of courts also includes the independent financing of courts from the executive. This principle may be secured by providing in laws that the state budget must provide as to how much finances should be allocated to every individual court so that proper conditions might be created for administration of justice.

In the sphere of the arrangement for financial supply of courts, the powers of the Minister of Justice regarding the preparation of a draft state budget and those concerning its discussion in the Seimas may be established as being within his competence.

Taking account of the reasoning set forth, it should be concluded that the norm of Paragraph 2 of Article 69 of the Law by which the competence of the Minister of Justice to arrange for the financial supply of local and regional courts and the Court of Appeal contradicts Paragraph 2 of Article 109 of the Constitution.

The impugned norm of Paragraph 2 of Article 69 of the Law by which the competence of the Minister of Justice to arrange for the material-technical supply of local and regional courts and the Court of Appeal is established should be assessed in a different manner. This legal norm should be interpreted as including not only the powers of the Minister of Justice to ascertain the material needs of courts but also his duty to help the system of courts as well as individual courts to utilise the finances allocated to them from the state budget in a rational way, and to create proper conditions for the activities of courts.

The important thing is that material supply of a court depends on how much finances are allocated to it from the state budget. Taking account of the fact that the Minister of Justice may not be empowered by law to decide as to how much finances should be allocated to every individual court, the norm of Paragraph 2 of Article 69 of the Law providing for the powers of the Minister of Justice to arrange for the material-technical supply for courts does not violate the independence of justice.

On the grounds of the aforesaid reasoning, it should be concluded that the norm Paragraph 2 of Article 69 of the Law providing for the powers of the Minister of Justice to arrange for the material-technical supply of local and regional courts and the Court of Appeal is in conformity with Paragraph 2 of Article 109 of the Constitution.

13. Paragraph 2 of Article 73 of the Law provides: “The Minister of Justice shall, through the Department of Courts, presidents of courts and other authorised persons, control the administrative activities of courts and judges, with the exception of those of the Supreme Court of Lithuania. The control over the administrative activities of judges shall be performed in accordance with the procedure established by the Minister of Justice.”

The petitioner is of the opinion that the right of the Minister of Justice to control the administrative activities of courts and judges, with the exception of those of the Supreme Court of Lithuania, as provided for by the Law, contradicts Paragraph 2 of Article 109 of the Constitution.

It needs to be noted that the norms of the Law do not disclose as to how the administrative activities of courts and judges placed under the control of the Minister of Justice should be understood. It is possible to conclude from Paragraph 3 of Article 73 of the Law that this control also encompasses the measures ensuring faster consideration of cases which must also conform to the ethical rules of judges, etc. The said measures should be regarded as those that are connected with the direct performance of the duties of a judge, i.e. administration of justice in the course of the consideration of cases at law.

Due to its vagueness, the norm set down in Item 3 of Paragraph 3 of Article 73 of the Law providing that the control over the administrative activity of courts (judges) includes other measures facilitating to guarantee effective administrative and good quality activity of courts (judges) should also be regarded as an improper one.

The Constitutional Court has held in this ruling that under the Constitution courts are independent and autonomous power. This constitutional provision means that a judge does not have to account to any state institution or officials for the cases at law that are under consideration, he does not have to present his cases for anyone to acquaint with only with the exception of the situations provided for in procedural laws. The decisions of a judge may be reviewed and altered or abrogated only by court of a higher instance under the procedure provided in procedural laws. As mentioned, the activity of courts is not and may not be an area of administration of the Ministry of Justice nor any other institution of the executive, therefore, there exist no constitutional grounds to establish the powers of the Minister of Justice permitting him to control the administrative activities of courts and judges. Moreover, the Minister of Justice cannot control the course of cases. It needs to be noted that other state institutions and officials may inquire the president of a respective court and request that they be given the data necessary for guaranteeing proper conditions of court working conditions. However, these state institutions and officials have no right to control either directly or indirectly the actions of a judge when he considers concrete cases. Such an interpretation of the principle of the independence of courts would be in line with the case-law of the European Court of Human Rights when Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms is applied wherein the right of individuals to a fair and impartial tribunal is enshrined.

The impugned norm of the Law establishes the control over the administrative activity of courts and judges which is exercised by the Minister of Justice through the Department of Courts, presidents of courts and other authorised persons. As mentioned, the sphere of this control and its content are defined in the Law in an imprecise and ambiguous manner. On the basis of Paragraph 3 of Article 73 of the Law, the legal regulation over the administrative activity of courts and judges creates pre-conditions for the Minister of Justice to interfere with administration of justice. Such legal regulation should be regarded as creating pre-conditions for institutions of the executive or its officials to rule over the courts, therefore, it contradicts the constitutional principle of the independence of judges and courts when they administer justice.

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 73 of the Law contradicts Paragraph 2 of Article 109 of the Constitution.

V

On the compliance of Paragraph 1 of Article 691 of the Law with the Constitution.

Paragraph 1 of Article 691 of the Law provides: “The Department of Courts under the Ministry of Justice shall be a legal person having its seal with the state emblem and its bank account. The Director of the Department of Courts shall be appointed and dismissed by the Prime Minister on the proposal of the Minister of Justice.”

The petitioner maintains that the provision of Paragraph 1 of Article 691 of the Law by which the Department of Courts shall be under the Ministry of Justice contradicts Paragraph 2 of Article 109 of the Constitution. In his opinion, the Department of Courts may not be a part of the executive.

Taking account of the reasoning set down in the petition of the petitioner, the Constitutional Court will investigate only the norm of Paragraph 1 of Article 691 of the Law by which the Department of Courts shall be under the Ministry of Justice.

Under the Law, certain functions are established for the Department of Courts which help to ensure proper working conditions of courts. The fact alone that this institution is under the Ministry of Justice does not mean that the sphere of the judiciary is interfered with. The presence of the Department of Courts under the Ministry of Justice may not serve as the grounds to recognise that the impugned norm of Paragraph 1 of Article 691 of the Law contradicts the Constitution.

Taking account of the arguments set forth, it should be concluded that provision of Paragraph 1 of Article 691 of the Law by which the Department of Courts shall be under the Ministry of Justice is in compliance with Paragraph 2 of Article 109 of the Constitution.

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

ruling:

1. To recognise that Paragraph 2 of Article 33 of the Republic of Lithuania’s Law on Courts to the extent that it provides for the proposal of the Minister of Justice regarding appointment of judges of local and regional courts, Paragraph 3 of Article 33 of the same law to the extent that it provides for the proposal of the Minister of Justice regarding appointment of presidents of local and regional courts, Paragraph 2 of Article 34 of the same law to the extent that it provides for the proposal of the Minister of Justice regarding appointment of judges of the Court of Appeal and its President from among them, Paragraph 5 of Article 56 of the same law to the extent that it provides for the proposal of the Minister of Justice regarding dismissal of the President and other judges of the Court of Appeal from office, Paragraph 7 of Article 56 of the same law to the extent that it provides for the proposal of the Minister of Justice regarding dismissal of presidents and other judges of other courts from office, contradict Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 4 of Article 33 of the Republic of Lithuania’s Law on Courts to the extent that it provides that deputy presidents or court division chairpersons shall be appointed by the Minister of Justice, Paragraph 3 of Article 34 of the same law to the extent that it provides that court division chairpersons of the Court of Appeal shall be appointed by the Minister of Justice from among the appointed judges, Paragraph 6 of Article 56 of the same law to the extent that it provides that court division chairpersons of the Court of Appeal shall be dismissed from office by the Minister of Justice, Paragraph 8 of Article 56 of the same law to the extent that it provides that deputy presidents or court division chairpersons of other courts shall be dismissed from office by the Ministry of Justice, contradict Paragraph 2 of Article 109 and Paragraph 3 of Article 112 of the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 2 of Article 14 of the Republic of Lithuania’s Law on Courts to the extent that it provides that the number of judges in the divisions of civil and criminal cases of regional courts and the Court of Appeal shall be set by the Minister of Justice on the proposal of the Director of the Department of Courts under the Ministry of Justice contradicts Paragraph 2 of Article 109 of the Republic of Lithuania.

4. To recognise that Paragraph 1 of Article 36 of the Republic of Lithuania’s Law on Courts to the extent that it provides for the proposal of the Minister of Justice regarding appointment of judges after his five-year term of office has expired contradicts Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania.

5. To recognise that Paragraph 3 of Article 51 of the Republic of Lithuania’s Law on Courts to the extent that it provides that a judge of a local or regional court, that of the Court of Appeal and the Supreme Court of Lithuania, in case he agrees, may, by means a decree of the President of the Republic, be delegated for the term of up to one year to the structures of the Ministry of Justice or those of the Department of Courts and that for the term of the delegation the powers of the delegated judge shall be suspended contradicts Paragraph 1 of Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 113 of the Constitution of the Republic of Lithuania.

6. To recognise that Paragraph 2 of Article 58 of the Republic of Lithuania’s Law on Courts to the extent that it provides for the proposal of the Minister of Justice regarding appointment of judges to the Court of Honour of Judges contradicts Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania.

7. To recognise that Paragraph 4 of Article 59 of the Republic of Lithuania’s Law on Courts to the extent that a disciplinary action against the president of a local or regional court and the Court of Appeal, their deputies, division chairpersons and other judges may be instituted by the Minister of Justice on the proposal of the Director of the Department of Courts or on his own initiative and that the judge against whom a disciplinary action has been instituted may be removed from office on the proposal of the Minister of Justice until the outcome of the case becomes clear contradicts Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania.

8. To recognise that Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on Courts to the extent that the competence of the Minister of Justice to arrange for the financial supply of local and regional courts and the Court of Appeal is established contradicts Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania.

9. To recognise that Paragraph 2 of Article 73 of the Republic of Lithuania’s Law on Courts contradicts Paragraph 2 of Article 109 of the Constitution of Republic of Lithuania.

10. To recognise that Paragraphs 1 and 2 of Article 251 of the Republic of Lithuania’s Law on Courts to the extent that the Ministry of Justice shall organise and coordinate a consistent training of judges and that the compulsory forms of improvement of professional skills shall be determined by a directive of the Minister of Justice, Paragraph 1 of Article 26, Paragraph 1 of Article 30 of the same law, Article 40 of the same law by which the rules for distribution of cases to judges, with the exception of the Supreme Court, shall be confirmed by the Minister of Justice on the proposal of the Director of the Department of Courts, Paragraph 1 of Article 66 of the same law to the extent that the powers of the Legal Committee of the Seimas are established regarding appointment of the Prosecutor General, Paragraph 1 of Article 691 of the same law by which the Department of Courts shall be under the Ministry of Justice, Paragraph 2 of Article 69 of the same law to the extent that it provides for the powers of the Minister of Justice regarding arrangement for the material-technical supply of local and regional courts and the Court of Appeal, are in compliance with the Constitution of the Republic of Lithuania.

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:

Egidijus Jarašiūnas      Egidijus Kūris      Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis     Jonas Prapiestis

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė