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On the appointment of R. K. Urbaitis as a justice of the Constitutional Court

Case No. 10/05

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ARTICLE 2 OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (NO. X-131) “ON THE APPOINTMENT OF JUSTICES OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA” OF 15 MARCH 2005, THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 237) “ON THE PRESENTATION TO THE SEIMAS OF THE REPUBLIC OF LITHUANIA CONCERNING THE RELEASE OF R. K. URBAITIS FROM THE OFFICE OF A JUSTICE OF THE SUPREME COURT OF LITHUANIA” OF 17 MARCH 2005, AND OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (NO. X-138) “ON THE RELEASE OF R. K. URBAITIS FROM THE OFFICE OF A JUSTICE OF THE SUPREME COURT OF LITHUANIA” OF 17 MARCH 2005 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

2 June 2005

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Seimas member Remigijus Ačas and Seimas member Julius Veselka, acting as the representatives of a group of members of the Seimas, the petitioner

Haroldas Šinkūnas, an advisor to the President of the Republic on legal issues, the Head of the Legal Department, as well as Česlovas Atkočaitis and Milda Vainiutė, advisors to the President of the Republic on legal issues, acting as the representatives of the President of the Republic of Lithuania, a party concerned

Česlovas Juršėnas, Deputy Speaker of the Seimas, as well as Antanas Jatkevičius and Gediminas Sagatys, senior advisors of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 29 March 2005, in its public hearing, considered case No. 10/05 subsequent to the 23 May 2005 petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether:

1) the Decree of the President of the Republic of Lithuania (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content and procedure of adoption, is in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution of the Republic of Lithuania, as well as Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;

2) Article 2 of the Resolution of the Seimas of the Republic of Lithuania (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas of the Republic of Lithuania (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure and succession of their adoption, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution of the Republic of Lithuania, Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 thereof;

3) Article 2 of the Resolution of the Seimas of the Republic of Lithuania (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas of the Republic of Lithuania (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of their content, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution of the Republic of Lithuania, Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof.

The Constitutional Court

has established:

I

A group of members of the Seimas, the petitioner, has applied to the Constitutional Court with the petition requesting an investigation into whether:

1) the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content and procedure of adoption, is in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, as well as Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;

2) Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure and succession of their adoption, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 thereof;

3) Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of their content, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof.

II

The petition of the group of members of the Seimas, the petitioner, is based upon the following arguments.

In the opinion of the petitioner, Paragraph 5 of Article 112 of the Constitution is applicable to justices and President of the Supreme Court, whereby a special institution of judges provided for by law shall advise the President of the Republic concerning the appointment of judges, as well as their promotion, transference, or release from office. The petitioner asserts that the President of the Republic, when he presents that the Seimas either appoint or release the judges provided for in Paragraph 2 of Article 112 of the Constitution, must prior be advised by the Council of Courts and only upon such advice he can initiate the procedures in the Seimas regarding appointment to or release from the office of a justice of the Supreme Court. The petitioner believes that the absence of advice of a special institution of judges (the Council of Courts) provided for in Paragraph 5 of Article 112 of the Constitution was a constitutional obstacle to the President of the Republic to issue the Decree of the President of the Republic of Lithuania (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 and to submit this decree to the Seimas for consideration.

According to the petitioner, by adopting resolution No. X-131 of 15 March 2005 and resolution No. X-138 of 17 March 2005, the Seimas violated the procedure of appointment of justices of the Constitutional Court and that of release of judges from office, which is entrenched in the Constitution. The petitioner notes that the norms of Articles 103 and 104, Paragraph 5 of Article 112 and Articles 113 and 115 of the Constitution are designed for ensuring the independence guarantees of judges, including justices of the Constitutional Court. Beside of other limitations, they also include the prohibition for the same person to be a justice of the Supreme Court and a justice of the Constitutional Court at the same time. In the opinion of the petitioner, by the impugned legal acts the President of the Republic initiated the release of Justice of the Supreme Court R. K. Urbaitis from office too late and improperly, while the Seimas appointed R. K. Urbaitis as a justice of the Constitutional Court without releasing him from the office of a justice of the Supreme Court. Therefore, after R. K. Urbaitis had been appointed as a justice of the Constitutional Court by Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and after he had been released from the office of a justice of the Supreme Court by the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, the procedure and succession of adoption of corresponding decisions as well as the constitutional principles of a state under the rule of law and responsible governance was violated.

According to the petitioner, Item 4 of Article 115 of the Constitution does not provide for either election of a justice of the Constitutional Court, nor transfer of a judge of a court of general jurisdiction to the office of a justice of the Constitutional Court, who executes specific competence—constitutional justice. Meanwhile, in his Decree (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, the President of the Republic indicated Item 4 of Article 115 of the Constitution as the grounds of release of R. K. Urbaitis from the office of a justice of the Supreme Court, but he did not specify upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in the said item—R. K. Urbaitis must be released from the office of a justice of the Supreme Court.

III

In the course of preparation of the case for the hearing of the Constitutional Court written explanations were received from Č. Juršėnas, A. Jatkevičius and G. Sagatys, who were representatives of the Seimas, a party concerned.

It is maintained in the explanations that the Seimas has no right to review, question, nor revise, let alone abolish legal acts passed by the President of the Republic. In the opinion of the representatives, the decree of the President of the Republic, which was passed and went into effect under procedure established by law, whereby the President of the Republic presents that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, gives rise to legal effects and creates legal preconditions for the Seimas to adopt a resolution on the release of this justice from the office of a justice of the Supreme Court.

Č. Juršėnas, A. Jatkevičius and G. Sagatys assert that the sequence of the Seimas resolutions whereby R. K. Urbaitis was appointed as a justice of the Constitutional Court and released from the office of a justice of the Supreme Court is logical and based on the protection of rights and legitimate interests of the person to whom the said procedures are applied. The release from office of a person, who meets the requirements raised to a justice of the Constitutional Court, without his knowing in advance whether or not he will be appointed as a justice of the Constitutional Court, would be in conflict with the principles of a state under the rule of law and legitimate expectations.

The representatives of the Seimas, a party concerned, emphasise that after the Seimas resolution whereby R. K. Urbaitis was appointed as a justice of the Constitutional Court had gone into effect, he could take the office of a justice of the Constitutional Court only after taking an oath in the Seimas. R. K. Urbaitis took the oath in the Seimas after he had been released from the office of a justice of the Supreme Court. Thus, R. K. Urbaitis took the office of a justice of the Constitutional Court when he no longer was a justice of the Supreme Court.

Č. Juršėnas, A. Jatkevičius and G. Sagatys, the representatives of the Seimas, a party concerned, also maintain that in the course of construction of Item 4 of Article 115 of the Constitution, the logic and systemic, but not literal (grammatical), methods of construction of law must be prevalent.

2. In the course of preparation of the case for the hearing of the Constitutional Court, written explanations were received from Č. Atkočaitis and M. Vainiutė, who were representatives of the President of the Republic, a party concerned.

Č. Atkočaitis and M. Vainiutė, the representatives of the President of the Republic, a party concerned, noted that Item 11 of Article 84 of the Constitution consolidates the powers of the President of the Republic in forming the judiciary. The procedure of the appointment and release of judges is regulated by Article 112 of the Constitution. Under Paragraph 2 of the said article, justices of the Supreme Court, as well as the President of the Supreme Court, who shall be chosen from among them, shall be appointed and released by the Seimas upon the presentation by the President of the Republic. Under Paragraph 3 of the same article, judges of the Court of Appeal, as well as the President of the Court of Appeal, who shall be chosen from among them, shall be appointed by the President of the Republic upon the approval of the Seimas. Under Paragraph 4 of the same article, judges and presidents of regional, local, and specialised courts shall be appointed and transferred to other places of work, by the President of the Republic. In the opinion of Č. Atkočaitis and M. Vainiutė, there are three legal situations in these articles of the Constitution, which are treated differently, where justices are appointed by the Seimas upon the presentation by the President of the Republic, where judges are appointed by the President of the Republic upon the approval of the Seimas, and where judges are appointed by the President of the Republic. The representatives believe that the Constitution grants the right to the President of the Republic to appoint and release judges of local, regional, and specialised courts as well as the Court of Appeal, and to decide issues of their transfer to other places of work and promotion.

According to the representatives of the President of the Republic, a party concerned, the President of the Republic issued the Decree (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 after he had received a respective proposal from the President of the Supreme Court, as provided for in Paragraph 3 of Article 90 of the Law on Courts of the Republic of Lithuania. By issuing the said decree, the President of the Republic was strictly observing his powers in forming the judiciary, which are established to him in the Constitution and the Law on Courts, and did not overstep the limits of his competence.

Č. Atkočaitis and M. Vainiutė assert that the special institution of judges provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, may advise the President of the Republic only concerning such judges in whose regard the President of the Republic adopts a final decision. As regards judges who are not appointed by the President of the Republic himself, he does not have a duty to apply to the Council of Courts for advice. The representatives of the President of the Republic also maintain that the existing procedure of formation of the Supreme Court permits avoiding also certain problems of professional ethics, which could arise if the Council of Courts, the majority of which is composed of judges of lower level courts, was commissioned to decide whether a person could become a justice of the Supreme Court and whether he could be released form that office.

In the opinion of Č. Atkočaitis and M. Vainiutė, the grounds of release of R. K. Urbaitis from the office of a justice of the Supreme Court, which were indicated in the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, were the most appropriate grounds from all the grounds of release from office of judges, which are specified in Article 115 of the Constitution.

In the explanations of the representatives of the President of the Republic, a party concerned, it is also maintained that under Paragraph 2 of Article 104 of the Constitution and Article 7 of the Law on the Constitutional Court a person who is appointed as a justice of the Constitutional Court, shall, before entering office, take an oath in the Seimas to be faithful to the Republic of Lithuania and the Constitution. Thus, R. K. Urbaitis acquired the powers of a justice of the Constitutional Court and took office only after he took the oath in the Seimas.

3. In the course of the preparation of the case for the hearing of the Constitutional Court, explanations of H. Šinkūnas, who was a representative of the President of the Republic, a party concerned, were received, which assented to the arguments given by Č. Atkočaitis and M. Vainiutė.

IV

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from V. Greičius, President of the Supreme Court of Lithuania.

V

1. At the Constitutional Court’s hearing, R. Ačas and J. Veselka, the representatives of a group of members of the Seimas, the petitioner, virtually reiterated the arguments set forth in the petition of the petitioner and presented additional explanations.

2. At the Constitutional Court’s hearing, Č. Juršėnas, A. Jatkevičius and G. Sagatys, the representatives of the Seimas, a party concerned, virtually reiterated the arguments set forth in the petition of the petitioner and presented additional explanations.

3. At the Constitutional Court’s hearing, H. Šinkūnas, Č. Atkočaitis and M. Vainiutė, the representatives of the President of the Republic, a party concerned, virtually reiterated the arguments set forth in the petition of the petitioner.

The Constitutional Court

holds that:

I

1. Following Paragraph 1 of Article 103 of the Constitution and Paragraph 2 of Article 4 of the Law on the Constitutional Court, by paper No. (1.6)-5T-53 of 15 December 2004 to the Speaker of the Seimas, the President of the Supreme Court presented Romualdas Kęstutis Urbaitis to the Seimas as a candidate to justices of the Constitutional Court.

2. On 15 March 2005, the Seimas adopted the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” which, inter alia, provides:

The Seimas of the Republic of Lithuania, following Item 10 of Article 67 and Article 103 of the Constitution of the Republic of Lithuania and Article 4 of the Law on the Constitutional Court of the Republic of Lithuania, r e s o l v e s: <…>

Article 2

Taking account of the presentation by the President of the Supreme Court of Lithuania, to appoint Romualdas Kęstutis URBAITIS as a justice of the Constitutional Court of the Republic of Lithuania for a nine-year term.

Article 3

This Resolution shall come into force as from 15 March 2005.”

3. At the time of presentation to the Seimas of the candidature of R. K. Urbaitis to justices of the Constitutional Court and at the time of adoption of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 R. K. Urbaitis was a justice of the Supreme Court.

4. Following Paragraph 2 of Article 112 of the Constitution and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, by paper No. (1.7)-5T-2 of 15 March 2005, the President of the Constitutional Court submitted a request to the President of the Republic that he propose that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, since the latter had been appointed as a justice of the Constitutional Court on 15 March 2005.

5. On 17 March 2005, the President of the Republic issued the Decree (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania”, which provides:

Article 1.

Following Item 11 of Article 84, Paragraph 2 of Article 112 and Item 4 of Article 115 of the Constitution of the Republic of Lithuania, as well as Paragraph 3 of Article 90 of the Republic of Lithuania’s Law on Courts, I shall present Romualdas Kęstutis URBAITIS to the Seimas of the Republic of Lithuania to release him from the office of a justice of the Supreme Court.

Article 2.

This decree shall come into force as from the day of its signing.”

6. On 17 March 2005, the Seimas adopted the Resolution (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” which provides:

Following Paragraph 2 of Article 112 and Item 4 of Article 115 of the Constitution of the Republic of Lithuania and taking account of the Decree of the President of the Republic (No. 237) ‘On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania’ of 17 March 2005, the Seimas of the Republic of Lithuania r e s o l v e s:

Article 1.

To release Romualdas Kęstutis URBAITIS from the office of a justice of the Supreme Court of Lithuania as from 17 March 2005.

Article 2.

This Resolution shall come into force from the moment of its adoption.”

7. R. K. Urbaitis, an appointed justice of the Constitutional Court, after the Seimas had released him from the office of a justice of the Supreme Court, took an oath in the Seimas to be faithful to the Republic of Lithuania and the Constitution on 17 March 2005.

8. A group of members of the Seimas, the petitioner, requests an investigation into whether the legal acts (parts thereof) whereby R. K. Urbaitis was appointed as a justice of the Constitutional Court and due to this was released from the office of a justice of the Supreme Court are not in conflict with the Constitution, and whether in particular:

1) the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content and procedure of adoption, is in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, as well as Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof;

2) Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure and succession of their adoption, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 thereof;

3) Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of their content, are in compliance with the principles of a state under the rule of law and responsible governance entrenched in the Constitution, Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 thereof.

9. Under Paragraph 1 of Article 64 of the Constitutional Court, the grounds for the consideration of a case concerning the compliance of a legal act with the Constitution in the Constitutional Court shall be a legally justified doubt that the entire legal act or part thereof is in conflict with the Constitution in view of: the content of norms (Item 1); the extent of regulation (Item 2); form (Item 3); the procedure of adoption, signing, publication, and entry into effect, which is established in the Constitution (Item 4).

The petition of the petitioner requesting an investigation into whether Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 and the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure and succession of their adoption, are not in conflict with the Constitution, should be treated as its petition requesting an investigation into the compliance of each of these legal acts (parts thereof) with the Constitution in view of the procedure of their adoption established in the Constitution. The indication “succession of their adoption” should be regarded as the reasoning of the petitioner substantiating the doubt whether the said legal acts (parts thereof) are not in conflict with the Constitution in view of the procedure of their adoption established in the Constitution.

II

On the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, and on the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law.

1. The petitioner grounds its doubts as regards the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, and the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, on the fact that, in the petitioner’s opinion, the Seimas, without prior release of R. K. Urbaitis from the office of a justice of the Supreme Court, could not, under the Constitution, appoint him as a justice of the Constitutional Court, since the Constitution prohibits the same person to be a justice of the Supreme Court and a justice of the Constitutional Court at the same time.

It needs to be noted that the position of the petitioner that Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 is in conflict, as to its content, with the Constitution is grounded on that fact that, in its opinion, this article is in conflict with the Constitution in view of the procedure of its adoption.

2. Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 is not in conflict, in view of the procedure of its adoption and in view of its content, with the Constitution in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court. In this constitutional justice case the Constitutional Court will not investigate whether the impugned article is not in conflict, in view of the procedure of its adoption and in view of its content, with the Constitution in the aspects other than specified in the petition of the petitioner.

3. The procedure of appointment of justices of the Constitutional Court is expressis verbis established in the Constitution.

Paragraph 3 of Article 103 of the Constitution provides that citizens of the Republic of Lithuania who have an impeccable reputation, who have higher education in law, and who have not less than a 10-year work record in the field of law or in a branch of science and education as a lawyer, may be appointed as justices of the Constitutional Court. Under Paragraph 1 of the same article, the President of the Republic, the Speaker of the Seimas, and the President of the Supreme Court present candidates for justices of the Constitutional Court; every three years, one-third of the Constitutional Court shall be reconstituted.

It needs to be emphasised that under the Constitution, when justices of the Constitutional Court are being appointed, only the following subjects expressis verbis specified in the Constitution enjoy the respective powers: (1) the state official (the President of the Republic, the Speaker of the Seimas, and the President of the Supreme Court) who presents a candidature of a justice of the Constitutional Court to the Seimas; (2) the Seimas which adopts a decision concerning appointment of the presented candidate as a justice of the Constitutional Court.

Under the Constitution, no institution and no official enjoys powers to deny or limit the constitutional right of the President of the Supreme Court (as well as that of the other state officials, the President of the Republic and the Speaker of the Seimas (specified in Paragraph 1 of Article 103 of the Constitution), who present candidates to justices of the Constitutional Court) to present to the Seimas a candidate to justices of the Constitutional Court, or the right of the Seimas either to appoint the presented person as a justice of the Constitutional Court, or not to appoint him. If such powers were established by means of a law or another legal act, preconditions would be created to impede reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under the procedure established in the Constitution.

4. Paragraph 3 of Article 104 of the Constitution provides that the limitations on work and political activities which are established for court judges shall apply also to justices of the Constitutional Court. Under Article 113 of the Constitution, the judge may not hold any other elective or appointive office, may not work in any business, commercial, or other private establishments or enterprises (Paragraph 1); he is also not permitted to receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities (Paragraph 1); a judge may not participate in the activities of political parties and other political organisations (Paragraph 2).

The said limitations are applied to a justice of the Constitutional Court from the day when he takes office. Under Paragraph 2 of Article 104 of the Constitution, before entering office, justices of the Constitutional Court shall take an oath in the Seimas to be faithful to the Republic of Lithuania and the Constitution.

Under Paragraph 2 of Article 4 of the Law on the Constitutional Court, the expiration of the justices’ term of office shall be the 3rd Thursday of March of the corresponding year; newly appointed justices of the Constitutional Court shall take an oath in the Seimas on the last working day before their term of office commences.

In the Constitution the legal regulation is established under which an appointed justice of the Constitutional Court must remove incompatibilities with the office of a justice of the Constitutional Court (Paragraph 3 of Article 104 and Article 113 of the Constitution) until the oath in the Seimas. If the removal of the said incompatibilities depends upon decisions of certain institutions (officials), these institutions (officials) have a duty to adopt respective decisions until the oath of the justice of the Constitutional Court in the Seimas. Otherwise, the appointed justice of the Constitutional Court would be impeded to take the office of a justice of the Constitutional Court and, thus, the reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under procedure established in the Constitution would be impeded.

It needs to be stressed that the Constitution does not contain any provisions requiring that a person, whose candidature has been presented to justices of the Constitutional Court, should, prior to the voting on his candidature in the Seimas, refuse his job, or the office that he is holding, or remove other incompatibilities with the office of a justice of the Constitution which are specified in the Constitution.

It also needs to be emphasised that the appointed justice of the Constitutional Court, until he has not taken an oath in the Seimas under established procedure, does not hold the office of a justice of the Constitutional Court. At that time the office of the justice of the Constitutional Court is held by the justice of the Constitutional Court whose term of office is about to expire.

5. As mentioned before, at the time of adoption of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 R. K. Urbaitis was a justice of the Supreme Court.

It was also mentioned that that a person, whose candidature has been presented to justices of the Constitutional Court, does not have to refuse his job, nor the office that he is holding.

Thus, the Seimas, after it appointed R. K. Urbaitis as a justice of the Constitutional Court by Article 2 of the Resolution (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 without his prior release from the office of a justice of the Supreme Court did not violate the prohibition arising from the Constitution for the same person to be a justice of the Supreme Court and a justice of the Constitutional Court at the same time.

6. Taking account of the arguments set forth, it should be held that Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Articles 104 and 113 of the Constitution.

7. While deciding whether Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Paragraph 5 of Articles 112 and Item 4 of Article 115 of the Constitution which were indicated by the petitioner, it should be noted that Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution do not regulate the relations linked with appointment of justices of the Constitutional Court: Paragraph 5 of Article 112 of the Constitution provides that a special institution of judges provided for by law shall advise the President of the Republic concerning the appointment of judges, as well as their promotion, transference, or release from office, while under Item 4 of Article 115 of the Constitution, judges of courts of the Republic of Lithuania shall be released from office in accordance with the procedure established by law upon election to another office or upon transference to another place of work upon their consent. Meanwhile, Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 is designated to appointment of R. K. Urbaitis as a justice of the Constitutional Court.

Thus, Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 regulates relations of different nature than Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution.

8. Taking account of the arguments set forth, it should be held that Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution.

9. Having held that Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Article 113, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution, it should be held that Article 2 of the said resolution of the Seimas in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, also with

Article 104 of the Constitution which provides that, while in office, justices of the Constitutional Court shall be independent of any other State institution, person or organisation, and shall follow only the Constitution of the Republic of Lithuania (Paragraph 1); before entering office, justices of the Constitutional Court shall take an oath in the Seimas to be faithful to the Republic of Lithuania and the Constitution (Paragraph 2); the limitations on work and political activities which are established for court judges shall apply also to justices of the Constitutional Court (Paragraph 3); justices of the Constitutional Court shall have the same rights concerning the inviolability of their person as shall members of the Seimas (Paragraph 4);

the constitutional principle of responsible governance;

the constitutional principle of a state under the rule of law.

10. It was held in this ruling of the Constitutional Court that the position of the petitioner whereby Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 is in conflict, as to its content, with the Constitution is grounded on that fact that, in the petitioner’s opinion, this article is in conflict with the Constitution in view of the procedure of its adoption. It was mentioned that the petitioner doubts as to the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of the procedure of its adoption, with the Constitution due to the fact that by this article R. K. Urbaitis was appointed as a justice of the Conditional Court without his prior release from the office of a justice of the Supreme Court.

11. Having held that Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Article 104, Article 113, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, it should be held that by its content Article 2 of the said resolution of the Seimas is not in conflict, in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court, with the following indicated by the petitioner:

Paragraph 1 of Article 5 of the Constitution which provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute State power;

Paragraph 2 of Article 5 of the Constitution which provides that the scope of power shall be limited by the Constitution;

Paragraph 1 of Article 6 of the Constitution which provides that the Constitution shall be an integral and directly applicable act;

Paragraph 1 of Article 7 of the Constitution which provides that any law or other act, which is inconsistent with the Constitution, shall be invalid;

Item 10 of Article 67 of the Constitution which provides that the Seimas shall appoint justices to, and Presidents of, the Constitutional Court and the Supreme Court;

Paragraph 5 of Article 112 of the Constitution which provides that a special institution of judges provided for by law shall advise the President of the Republic concerning the appointment of judges, as well as their promotion, transference, or release from office;

Item 4 of Article 115 of the Constitution which provides that judges of courts of the Republic of Lithuania shall be released from office in accordance with the procedure established by law upon election to another office or upon transference to another place of work upon their consent;

the constitutional principle of responsible governance;

the constitutional principle of a state under the rule of law.

III

On the compliance of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure of its adoption and its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as the constitutional principles of a state under the rule of law and responsible governance.

1. The petitioner grounds its doubts as to the compliance of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure of its adoption and its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as the constitutional principles of responsible governance and a state under the rule of law, upon the fact that, in the petitioner’s opinion, the President of the Republic, prior to his presentation that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, had to receive advice from a special institution of judges (the Council of Courts, under the Law on Courts), which is indicated in Paragraph 5 of Article 112 of the Constitution, while in case of absence of such advice he could not issue the decree of 17 March 2005, nor present this decree to the Seimas for deliberation, also, the petitioner’s doubts are based on the fact that, in its opinion, in his Decree (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 the President of the Republic indicated Item 4 of Article 115 as the ground for release of R. K. Urbaitis from the office of a justice of the Supreme Court, but he did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in this item—R. K. Urbaitis must be released from the office of a justice of the Supreme Court.

2. Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption, with the Constitution. In this constitutional justice case the Constitutional Court will not investigate whether the impugned decree of the President of the Republic is in not conflict, in view of the procedure of its adoption, with the Constitution in the aspects other than those indicated by the petitioner.

Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, also in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of its content, with the Constitution. In this constitutional justice case the Constitutional Court will not investigate whether the impugned decree of the President of the Republic is not in conflict, in view of its content, with the Constitution in the aspects other than those indicated by the petitioner.

3. Under Item 11 of Article 84 of the Constitution, the President of the Republic, inter alia, in cases provided for by law presents that the Seimas release judges. A special institution of judges provided for by law shall advise the President of the Republic concerning the appointment of judges, as well as their promotion, transference, or release from office (Paragraph 5 of Article 112 of the Constitution).

In its ruling of 21 December 1999, the Constitutional Court held: “The norms of Item 11 of Article 84 of the Constitution establishing the powers of the President of the Republic in the sphere of the appointment and release 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 release from office”, also 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 release from office”, and that “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 release from office”.

4. It was held in this ruling of the Constitutional Court that the procedure of appointment of justices of the Constitutional Court is expressis verbis established in the Constitution, that, under the Constitution, no institution and no official enjoys the powers to deny or limit the constitutional right of the Seimas either to appoint the presented person as a justice of the Constitutional Court, or not to appoint him, also, that if such powers were established by means of a law or another legal act, preconditions would be created to impede reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under the procedure established in the Constitution.

It was also held in this ruling of the Constitutional Court that, under the Constitution, an appointed justice of the Constitutional Court must remove incompatibilities with the office of a justice of the Constitutional Court (Paragraph 3 of Article 104 and Article 113 of the Constitution) until the oath in the Seimas, and that if the removal of the said incompatibilities depends upon decisions of certain institutions (officials), these institutions (officials) have a duty to adopt respective decisions until the oath of the justice of the Constitutional Court in the Seimas, otherwise, the appointed justice of the Constitutional Court would be impeded to take the office of a justice of the Constitutional Court and, thus, the reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under procedure established in the Constitution would be impeded.

Thus, if a person is appointed as a justice of the Constitutional Court, who is holding the office of a judge of a certain court of the Republic of Lithuania at the time of his appointment, he must be released from this office until his oath at the Seimas. If a person is appointed as a justice of the Constitutional Court, who is holding office of a justice of the Supreme Court at the time of his appointment, the President of the Republic has a constitutional duty to present that the Seimas release, while the Seimas has a constitutional duty to release this appointed justice of the Constitutional Court from the office of a justice of the Supreme Court until the oath of the justice of the Constitutional Court at the Seimas. Otherwise, the appointed justice of the Constitutional Court would be impeded to take the office of a justice of the Constitutional Court and, thus, the reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under procedure established in the Constitution would be impeded.

5. It has been held in this ruling of the Constitutional Court that, under the Constitution, no institution and no official enjoys the powers to deny or limit the constitutional right of the Seimas either to appoint the presented person as a justice of the Constitutional Court, or not to appoint him. It was also held that when justices of the Constitutional Court are being appointed, the respective powers, under the Constitution, are enjoyed only by the state officials presenting the candidates and by the Seimas. In the context of the constitutional justice case at issue, it should be emphasised that the special institution of judges provided for by law (the Council of Courts, under the Law on Courts) which is provided for in Paragraph 5 of Article 112 of the Constitution does not enjoy, under the Constitution, any powers to adopt any decisions related with the appointment of justices of the Constitutional Court. Thus, this institution, under the Constitution, does not enjoy the powers to advise on release from office of any judge of the Republic of Lithuania in the case where this judge has been appointed as a justice of the Constitutional Court by the Seimas. In this context, it should be noted that the cited statements “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 release from office”, and “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 release from office” of the Constitutional Court’s ruling of 21 December 1999 cannot be construed without taking account of the provisions of the Constitution regulating the procedure of appointment of justices of the Constitutional Court.

Thus, when adopting a decision on release from office of any judge of a court of the Republic of Lithuania, who is appointed as a justice of the Constitutional Court, the President of the Republic, need not, under the Constitution, apply to the special institution of judges (the Council of Courts, under the Law on Courts) provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, for advice, while the said institution, under the Constitution, does not enjoy the powers to give advice to the President of the Republic as regards this issue. Otherwise, preconditions would be created for the said special institution of judges (the Council of Courts) to impede the appointed justice of the Constitutional Court to take the office of a justice of the Constitutional Court and, thus, the reconstitution of the Constitutional Court—one of the institutions of state power consolidated in the Constitution—under procedure established in the Constitution, as well as the implementation of the resolution of the Seimas on the appointment of the justice of the Constitutional Court, would be impeded.

6. Thus, the President of the Republic did not have to apply to the Council of Courts for corresponding advice before he issued the Decree (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 whereby he presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court of Lithuania, since the latter had been appointed as a justice of the Constitutional Court.

7. Taking account of the arguments set forth, it should be concluded that the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption and its content, with Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution.

8. It needs to be emphasised that the fact that it has been held in this ruling of the Constitutional Court that when adopting a decision on release from office of any judge of a court of the Republic of Lithuania, who is appointed as a justice of the Constitutional Court, the President of the Republic, need not, under the Constitution, apply to the special institution of judges (the Council of Courts, under the Law on Courts) provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, for advice, while the said institution, under the Constitution, does not enjoy the powers to give advice to the President of the Republic as regards this issue cannot be interpreted as the statement of the only case where the President of the Republic, under the Constitution, need not, under the Constitution, apply to the special institution of judges (the Council of Courts, under the Law on Courts) provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, for advice, while the said institution, under the Constitution, does not enjoy the powers to give advice to the President of the Republic as regards this issue.

9. While deciding whether the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 is not in conflict with Item 4 of Article 115 of the Constitution due to the fact that that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in this item—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, it should be held that the provision “Judges of courts of the Republic of Lithuania shall be released from office in accordance with the procedure established by law in the following cases: <…> 4) upon election to another office or upon transference to another place of work upon their consent” of Article 115 of the Constitution cannot be construed only literally by applying only the linguistic (verbal) method of construction of law. The formula “upon election to another office or upon transference to another place of work upon their consent” of Item 4 of Article 115 of the Constitution encompasses all cases where a judge, upon his consent, is elected or by other way takes another office (begins another job) regardless of what way of taking the new office (beginning the new job) is provided for in laws and other legal acts. In the context of the constitutional justice case at issue, it needs to be noted that this formula, precisely its part “upon election to another office” also encompasses the cases when a judge of a certain court of the Republic of Lithuania is appointed as a justice of the Constitutional Court.

The mere fact that the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court does not give grounds to assert that this decree of the President of the Republic is in conflict with Item 4 of Article 115 of the Constitution.

10. Taking account of the arguments set forth, it should be concluded that the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of its content, with Item 4 of Article 115 of the Constitution.

11. Having held that the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption and its content, with Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution, and in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of its content, with Item 4 of Article 115 of the Constitution, it should also be held that this decree of the President of the Republic in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, and in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption and its content, with the following indicated by the petitioner:

Paragraph 1 of Article 5 of the Constitution which provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute State power;

Paragraph 2 of Article 5 of the Constitution which provides that the scope of power shall be limited by the Constitution;

Paragraph 1 of Article 6 of the Constitution which provides that the Constitution shall be an integral and directly applicable act;

Paragraph 1 of Article 7 of the Constitution which provides that any law or other act, which is inconsistent with the Constitution, shall be invalid;

Article 77 of the Constitution which provides that the President of the Republic shall be Head of State (Paragraph 1) and that he shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws (Paragraph 2);

the constitutional principle of responsible governance;

the constitutional principle of a state under the rule of law.

IV

On the compliance of the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, and on the compliance of the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law.

1. The petitioner grounds its doubts concerning the compliance of the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, and the compliance of the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law on the same reasoning upon which the petitioner grounds its doubts concerning the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, also its doubts as to the compliance of Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law, as well as its doubts concerning the compliance of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in view of its content and the procedure of its adoption, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77, Item 11 of Article 84, Paragraph 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as the constitutional principles of responsible governance and a state under the rule of law.

2. Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in the aspect that it was adopted in view of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 which had been issued without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), is not in conflict, in view of the procedure of its adoption, with the Constitution. In this constitutional case the Constitutional Court will not investigate whether the impugned resolution of the Seimas is in not conflict, in view of the procedure of its adoption, with the Constitution in the aspects other than those indicated by the petitioner.

Subsequent to the petition of the petitioner the Constitutional Court will investigate whether the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in the aspect that it was adopted in view of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 which had been issued without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), also in the aspect that this resolution of the Seimas did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis had to be released from the office of a justice of the Supreme Court, is not in conflict, as to its content, with the Constitution. In this constitutional case the Constitutional Court will not investigate whether the impugned resolution of the Seimas is in not conflict, in view of its content, with the Constitution in the aspects other than those indicated by the petitioner.

3. It has been held in this ruling of the Constitutional Court that:

Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of the procedure of its adoption, with Article 104, Paragraph 5 of Article 112, Article 113, Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law;

Article 2 of the Resolution of the Seimas (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court is not in conflict, in view of its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112, Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law;

the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005, in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption and its content, with Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution;

the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of its content, with Item 4 of Article 115 of the Constitution;

the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that by this decree the President of the Republic, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, and in the aspect that this decree of the President of the Republic did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis must be released from the office of a justice of the Supreme Court, is not in conflict, in view of the procedure of its adoption and its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 77 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law.

4. Having held this, it should also be held that the Resolution of the Seimas (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005:

in the aspect that it was adopted in view of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 which had been issued without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), is not in conflict, in view of the procedure of its adoption, with Articles 103 and 104, Paragraph 5 of Article 112, Article 113 and Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law;

in the aspect that it was adopted in view of the Decree of the President of the Republic (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 which had been issued without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Law on Courts), also in the aspect that this resolution of the Seimas did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution—R. K. Urbaitis had to be released from the office of a justice of the Supreme Court, is not in conflict, as to its content, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Item 10 of Article 67, Paragraph 5 of Article 112, Item 4 of Article 115 of the Constitution as well as the constitutional principles of responsible governance and a state under the rule of law.

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

ruling:

1. To recognise that Article 2 of the Resolution of the Seimas of the Republic of Lithuania (No. X-131) “On the Appointment of Justices of the Constitutional Court of the Republic of Lithuania” of 15 March 2005 in the aspect that by this article R. K. Urbaitis was appointed as a justice of the Constitutional Court without his prior release from the office of a justice of the Supreme Court, in view of the procedure of adoption established in the Constitution of the Republic of Lithuania and in view of its content, is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that the Decree of the President of the Republic of Lithuania (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that by this decree the President of the Republic of Lithuania, without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Republic of Lithuania’s Law on Courts), presented that the Seimas release R. K. Urbaitis from the office of a justice of the Supreme Court, and in the aspect that this decree of the President of the Republic of Lithuania did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution of the Republic of Lithuania—R. K. Urbaitis must be released from the office of a justice of the Supreme Court of Lithuania, in view of the procedure of adoption established in the Constitution of the Republic of Lithuania and in view of its content, is not in conflict with the Constitution of the Republic of Lithuania.

3. To recognise that the Resolution of the Seimas of the Republic of Lithuania (No. X-138) “On the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 in the aspect that it was adopted in view of the Decree of the President of the Republic of Lithuania (No. 237) “On the Presentation to the Seimas of the Republic of Lithuania Concerning the Release of R. K. Urbaitis from the Office of a Justice of the Supreme Court of Lithuania” of 17 March 2005 which had been issued without receiving, prior to this, advice from a special institution of judges (the Council of Courts, under the Republic of Lithuania’s Law on Courts), also in the aspect that this resolution of the Seimas of the Republic of Lithuania did not specify in particular upon which grounds—“upon election to another office” or “upon transference to another place of work upon his consent”, which are set forth in Item 4 of Article 115 of the Constitution of the Republic of Lithuania—R. K. Urbaitis had to be released from the office of a justice of the Supreme Court of Lithuania, in view of the procedure of adoption established in the Constitution of the Republic of Lithuania and in view of its content, is not in conflict 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:          Armanas Abramavičius

                                                                               Egidijus Kūris

                                                                               Kęstutis Lapinskas

                                                                               Zenonas Namavičius

                                                                               Ramutė Ruškytė

                                                                               Vytautas Sinkevičius

                                                                               Stasys Stačiokas