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On the constitutional system of the judiciary and its self-governance, on the appointment, promotion, and transfer of judges and their dismissal from office, and on the prolongation of the powers of judges

Case No. 13/04-21/04-43/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 24 JANUARY 2002), PARAGRAPH 3 (WORDING OF 21 JANUARY 2003), PARAGRAPHS 4, 5 AND 6 (WORDING OF 24 JANUARY 2002) OF ARTICLE 56, PARAGRAPH 3 (WORDING OF 28 JANUARY 2003) OF ARTICLE 57, PARAGRAPH 4 (WORDING OF 24 JANUARY 2002) OF ARTICLE 63, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 70, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 71, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 72, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 73, PARAGRAPH 1 (WORDING OF 24 JANUARY 2002) OF ARTICLE 74, PARAGRAPH 1 (WORDING OF 24 JANUARY 2002) OF ARTICLE 75, PARAGRAPH 2 (WORDING OF 21 JANUARY 2003) OF ARTICLE 76, PARAGRAPH 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 77, PARAGRAPH 2 (WORDING OF 21 JANUARY 2003) OF ARTICLE 78, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 79, PARAGRAPHS 3 AND 7 (WORDING OF 24 JANUARY 2002) OF ARTICLE 81, PARAGRAPHS 3 AND 7 (WORDING OF 24 JANUARY 2002) OF ARTICLE 90, PARAGRAPHS 2 AND 5 (WORDING OF 24 JANUARY 2002) OF ARTICLE 119, ITEMS 3 AND 4 (WORDING OF 24 JANUARY 2002) OF ARTICLE 120, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 128 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS, OF ITEM 13 (WORDING OF 4 JULY 1996) OF PARAGRAPH 3 OF ARTICLE 11, PARAGRAPHS 1 AND 3 (WORDING OF 18 APRIL 1995) AND PARAGRAPH 4 (WORDING OF 4 JULY 1996) OF ARTICLE 17, PARAGRAPH 3 (WORDING OF 18 APRIL 1995) OF ARTICLE 18 OF THE REPUBLIC OF LITHUANIA’S LAW “THE STATUTE OF THE SUPREME COURT OF LITHUANIA” AND OF ARTICLE 1 OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 2048) “ON RELEASING A JUDGE OF THE REGIONAL COURT FROM OFFICE” OF 10 FEBRUARY 2003 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

9 May 2006

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Nijolė Steiblienė (representing the group of members of the Seimas of the Republic of Lithuania, the petitioner, which applied with the petition of 19 February 2004), Julius Sabatauskas (representing the group of members of the Seimas of the Republic of Lithuania, the petitioner, which applied with the petition of 2 November 2004), Gintaras Steponavičius (representing the group of members of the Seimas of the Republic of Lithuania, the petitioner, which applied with the petition of 2 November 2004), Gytis Kaminskas, an advocate (representing the group of members of the Seimas of the Republic of Lithuania, the petitioner, which applied with the petition of 2 November 2004), acting as the representatives of the groups of members of the Seimas of the Republic of Lithuania, the petitioners

Gediminas Sagatys, senior advisor of the Legal Division of the Office of the Seimas (representing the Seimas of the Republic of Lithuania, a party concerned, in the part of the case subsequent to the 19 February 2004 and 2 February 2004 petitions of the groups of members of the Seimas, the petitioners, as well as subsequent to the petition of the Court of Appeal of Lithuania in the part of the case on the compliance of Paragraph 3 of Article 57 of the Law on Courts with the Constitution), acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Advisors to the President of the Republic on legal issues Česlovas Atkočaitis and Milda Vainiūtė (representing the President of the Republic of Lithuania, a party concerned, in the part of the case subsequent to the petition of the Court of Appeal of Lithuania, the petitioner), acting as the representatives of the President 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, in its public hearing, on 19 April 2006, considered case No. 13/04-21/04-43/04 subsequent to the following petitions:

the 19 February 2004 petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether Paragraph 3 of Article 57, Paragraph 2 of Article 73, Paragraph 2 of Article 79 and Paragraph 3 of Article 81 of the Republic of Lithuania’s Law on Courts are not in conflict with Article 29, Paragraph 2 of Article 109 and Paragraphs 2 and 5 of Article 112 of the Constitution of the Republic of Lithuania;

the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the provision of Paragraph 3 of Article 57 of the Republic of Lithuania’s Law on Courts that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, is not in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112, Paragraph 2 of Article 109 and Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, to the extent that, according to the Court of Appeal of Lithuania, the petitioner, it prescribes that the President of the Republic of Lithuania may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge upon the expiry of his powers, without applying to the Council of Courts for advice, as well as whether the Decree of the President of the Republic of Lithuania (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with Paragraph 1 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law, as well as with Paragraph 1 of Article 45, with the provision of Paragraph 3 of Article 57 that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, and with Paragraph 2 of Article 70 of the Republic of Lithuania’s Law on Courts;

the 2 November 2004 petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether Paragraph 2 (wording of 24 January 2002) of Article 128 of the Republic of Lithuania’s Law on Courts is not in conflict with Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

By the Constitutional Court’s decision of 3 November 2003, these petitions were joined into one case and it was given reference No. 13/04-21/04-43/04.

The Constitutional Court

has established:

I

1. On 19 February 2004, a group of members of the Seimas, the petitioner, applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 57, Paragraph 2 of Article 73, Paragraph 2 of Article 79 and Paragraph 3 of Article 81 of the Law on Courts are not in conflict with Article 29, Paragraph 2 of Article 109 and Paragraphs 2 and 5 of Article 112 of the Constitution.

2. The Court of Appeal of Lithuania, the petitioner, considered a civil case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision of Paragraph 3 of Article 57 of the Law on Courts that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, is not in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112, Paragraph 2 of Article 109 and Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, to the extent that, according to the Court of Appeal of Lithuania, the petitioner, it prescribes that the President of the Republic may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office upon the expiry of his powers, without applying to the Council of Courts for advice, as well as whether the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with Paragraph 1 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution, with the constitutional principle of a state under the rule of law, as well as with Paragraph 1 of Article 45, with the provision of Paragraph 3 of Article 57 that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, and with Paragraph 2 of Article 70 of the Law on Courts.

3. On 2 November 2004, a group of members of the Seimas, the petitioner, applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of Article 128 of the Law on Courts is not in conflict with Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. The 19 February 2004 petition of a group of members of the Seimas, the petitioner, is based on the following arguments.

1.1. Under Paragraph 3 of Article 57 of the Law on Courts, when a judge of the Supreme Court of Lithuania (hereinafter also referred to as the Supreme Court), the Court of Appeal of Lithuania (hereinafter also referred to as the Court of Appeal) and the Supreme Administrative Court of Lithuania (hereinafter also referred to as the Supreme Administrative Court), a regional court and a regional administrative court reaches the age of 65, his powers may be prolonged by the institution which appointed him until he reaches the age of 70. In such cases the judge wishing to have the prolongation of his powers shall apply to the President of the Republic. The issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law. According to the petitioner, the institution which decides the question of the prolongation of powers is not obliged to prolong the judge’s powers, it is not bound by any formal criteria, according to which it would be possible to decide on whether to prolong the judge’s powers or not, thus, there might be situations in which, when cases are being decided, one may bring pressure upon the judge whose powers are about to expire by letting him understand that the prolongation of his powers will depend on how a particular case will be decided. Thus, in the opinion of the petitioner, a possibility of prolonging the judge’s powers is in conflict with the principle of independence of the judge and courts entrenched in the Constitution. Moreover, it is not permitted to prolong the powers of judges of local courts. Thus, in the opinion of the petitioner, the principle of the equality of persons entrenched in Article 29 of the Constitution, from which, as states the petitioner, the principle of the equal status of all judges should be derived, is violated.

1.2. Under Paragraph 5 of Article 112 of the Constitution, a special institution of judges provided for by law shall advise on the appointment, promotion, transfer of judges or their release from office. The powers of the President of the Supreme Court to select candidates to a judicial office of the Supreme Court and to recommend them to the President of the Republic, to advise the President of the Republic on the appointment to or release of the Chairperson of a division of the Supreme Court from office entrenched in Paragraph 2 of Article 73, Paragraph 2 of Article 79 and Paragraph 3 of Article 81 of the Law on Courts restrict the competence of the said special institution of judges to advise the President of the Republic on questions of the career of judges.

2. The 15 April 2004 petition of the Court of Appeal of Lithuania, the petitioner, is based on the following arguments.

2.1. Under the Constitution, the President of the Republic must be advised on the appointment of judges or their release from office by a special institution of judges provided for by law. Under Paragraph 2 of Article 70 of the Law on Courts, this institution is the Council of Courts, but under Paragraph 3 of Article 57 of the same law, the President of the Republic may, by himself, reject to satisfy the judge’s application and not prolong his powers, without applying to the Council of Courts for advice. Thus, the balance of between state institutions—the President of the Republic and the Judiciary—entrenched in the Constitution, the principle of the independence of courts and the principle of equality of all persons entrenched in Paragraph 1 of Article 29 of the Constitution are violated.

2.2. Under Paragraph 5 of Article 112 of the Constitution, a special institution (which, under Paragraph 2 of Article 70 of the Law on Courts, is the Council of Courts) of judges provided for by law shall advise the President of the Republic on the appointment, promotion, transfer of judges, or their release from office, and under Paragraph 3 of Article 57 of the Law on Courts, the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law. Thus, the President of the Republic may not decide by himself on the judge’s application to prolong his powers, without applying to the Council of Courts for advice. The petitioner had doubts on whether the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with the Constitution, as this decree was passed without the President of the Republic’s application to the Council of Courts for advice.

3. The 2 November 2004 petition of a group of members of the Seimas, the petitioner, is based on the following arguments.

In order to ensure the independence of courts, their financial independence from the executive power is of crucial importance. The financial independence of courts is ensured by the legal regulation where the financing for the system of courts and each court is allocated in the state budged approved by law. Various subjects specified in the law may be managers of all the assignations provided for the supply programme of the whole system of courts, however, they may not administer the financing provided for to every court separately in the state budget. The Minister of Justice (Ministry of Justice) is not the manager of the assignations established for courts and may not establish how the financing allocated for courts by the state budget should be used. Thus, in the opinion of the petitioner, the provision of Paragraph 2 of Article 128 of the Law on Courts that draft state investment programmes shall be approved by the Council of Courts, and the state investment programmes shall be administered by the Ministry of Justice is not in line with the constitutional principle of the separation of powers, the constitutional principle of a state under the rule of law, and with constitutional principle of independence of the judge and court which also includes the independence of court financing from the executive power.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from G. Sagatys, the representative of the Seimas, a party concerned (representing the Seimas, a party concerned, in the part of the case subsequent to the 19 February 2004 and 2 February 2004 petitions of groups of members of the Seimas, the petitioners, as well as subsequent to the petition of the Court of Appeal of Lithuania in the part of the case on the compliance of Paragraph 3 of Article 57 of the Law on Courts with the Constitution), M. Vainiūtė, the representative of the President of the Republic, a party concerned (representing the President of the Republic, a party concerned, in the part of the case subsequent to the petition of the Court of Appeal of Lithuania, the petitioner) and from Č. Atkočaitis, the representative of the President of the Republic, a party concerned (representing the President of the Republic, a party concerned, in the part of the case subsequent to the petition of the Court of Appeal of Lithuania, the petitioner).

1. In the explanations of G. Sagatys it is stated that the articles (parts thereof) of the Law on Courts impugned by the groups of members of the Seimas and the Court of Appeal of Lithuania, the petitioners, are not in conflict with the Constitution. His position is grounded on the following arguments.

1.1. The guarantee of the duration of the judge’s term of powers is only one of the elements of the principle of independence of the judge. Such a guarantee is the prohibition on discontinuing the judge’s powers before they expire, save the cases established in the Constitution. The possibility of prolonging the judge’s powers in itself does not mean that the principle of independence of the judge is violated.

1.2. In the opinion of G. Sagatys, Paragraph 3 of Article 57 of the Law on Courts is not in conflict with Paragraph 2 of Article 109 of the Constitution and with the principle of equality of all persons entrenched in Article 29 of the Constitution, as this principle does not deny a possibility of establishing different legal regulation to certain categories of persons who are in different situations.

1.3. In the opinion of the representative of the Seimas, a party concerned, the selection procedure of the candidates to judges of the Supreme Court that narrows the limits of the powers of the President of the Republic directly entrenched in the Constitution, should be assessed negatively. However, the question of the constitutionality of Paragraph 2 of Article 73 of the Law on Courts should be decided not only in the context of the provisions of Paragraphs 2 and 5 of Article 112 of the Constitution specified by the petitioners, but also of other provisions (inter alia, the principle of the separation of powers) of the Constitution.

1.4. The procedure for appointment to and release of Chairpersons of divisions of the Supreme Court from office is not regulated comprehensively in the Constitution. While deciding whether the impugned provisions of Paragraph 2 of Article 79 and Paragraph 3 of Article 81 of the Law on Courts are not in conflict with the Constitution, it is important to establish the content of the notions “appointment of a judge” and “promotion of a judge”: if the appointment of a judge of the Supreme Court as the President of this court were considered as the appointment or promotion under Paragraph 5 of Article 112 of the Constitution, it would be possible to consider the impugned Paragraph 2 of Article 79 of the Law on Courts as being in conflict with the Constitution only to the extent that it does not consolidate the right of the Council of Courts to advice the President of the Republic on these questions. However, if a different meaning was attached to the notions “appointment” and “promotion” in the context of the Law on Courts, the argumentation of the petitioners would lose any sense.

1.5. While assessing the compliance of Paragraph 2 of Article 128 of the Law on Courts with the Constitution, it is necessary to determine the context of the function to administer the state investment programmes assigned to the Ministry of Justice, as well as the significance of the state investment programmes to the courts financing system. The financing of courts is secured in two ways: by approving and pursuing the individual budget plan of the year of each court and by implementing state financing programmes. Thus, the state investment programmes may make an important part of funds allotted in order to support a certain court. The state investment programmes are administered in a centralised manner, and it is usually done by the central institutions of the executive. A possibility is not to be rejected that while administering the investment programmes of this kind, the Ministry of Justice may indirectly influence the activity of the courts and thus violate the constitutional principle of independence of courts. However, the impugned provision of Paragraph 2 of Article 128 of the Law on Courts is not related to the implementation of the principles of the state under the rule of law and of the separation of powers: its relation to the principles of independence of courts and the prohibition on interfering with the activities of courts must be established after an assessment of the possibilities of finding a correct balance between the independence of the judiciary and the necessity to ensure its smooth financing.

2. In the explanations of M. Vainiūtė, it is stated that the provision (to the extent specified by the petitioner) of Paragraph 3 of Article 57 of the Law on Courts impugned by the Court of Appeal of Lithuania, the petitioner, is not in conflict with the Constitution and that the impugned Decree of the President of the Republic (to the extent specified by the petitioner) is not in conflict with the articles (parts thereof) of the Law on Courts specified by the petitioner. Her position is grounded on the following arguments.

2.1. It is the exceptional competence of the President of the Republic to decide whether to prolong the judge’s powers. Neither the expiry of the judge’s powers when he turns 65, nor the decree of the President of the Republic passed on that grounds by which the judge is released from office should be regarded as violation of the independence of courts, as the President of the Republic implements his discretionary right not to prolong the judge’s powers. Thus, the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with Paragraph 1 of Article 5 and Paragraph 2 of Article 109 of the Constitution.

2.2. Under the Law on Courts, the prolongation of the judge’s powers is not an imperative, it is possible only in exceptional cases, when the public interest requires so (the work of that judge is important to the legal system of Lithuania); it is an additional guarantee of the professional activity of the judge. The President of the Republic, after he has taken into account the advice of the Council of Courts, prolonged the powers of Jurgis Tautkevičius temporally, until three particular criminal cases under consideration are finished. However, later on the judge’s powers of Jurgis Tautkevičius were not prolonged; according to M. Vainiūtė, “in addition, the circumstance that J. Tautkevičius had been punished under the disciplinary procedure was also assessed”. While implementing his discretionary right not to prolong the powers of this judge, the President of the Republic did not apply to the Council of Courts, as there was no ground for that—the President of the Republic had not passed a decree on the prolongation of the powers of Jurgis Tautkevičius.

3. Č. Atkočaitis assented to the explanations of M. Vainiūtė.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from G. Bužinskas, the Minister of Justice of the Republic of Lithuania, and R. Bakšys, the Director of the National Administration of Courts.

V

1. At the hearing of the Constitutional Court, N. Steiblienė, the representative of a group of members of the Seimas, the petitioner, which applied with the petition of 19 February 2004, and J. Sabatauskas, G. Steponavičius as well as G. Kaminskas, the representatives of a group of members of the Seimas, the petitioner, which applied with the 2 November 2004 petition, virtually reiterated the arguments set forth in the petitions.

2. At the hearing of the Constitutional Court, G. Sagatys, the representative of the Seimas, a party concerned, virtually reiterated the arguments set forth in the written explanations.

3. At the hearing of the Constitutional Court, M. Vainiūtė and Č. Atkočaitis, the representatives of the President of the Republic, a party concerned, virtually reiterated the arguments set forth in the written explanations of M. Vainiūtė.

The Constitutional Court

holds that:

I

1. On 31 May 1994, the Seimas adopted the Law on Courts. This law has been amended and supplemented more than once. The Law on Courts (wording of 31 May 1994 with subsequent amendments and supplements) was amended and set forth in a new wording by Article 1 of the Republic of Lithuania’s Law on Amending the Law on Courts which was adopted by the Seimas on 24 January 2002 and which came into force on 1 May 2002. The Law on Courts (wording of 24 January 2002) was amended and supplemented by, inter alia, the Republic of Lithuania’s Law on Amending Article 57 of the Law on Courts which was adopted by the Seimas on 28 January 2003 and which came into force on 31 January 2003.

1.1. In Paragraph 3 (wording of 24 January 2002) of Article 57 titled “Judges’ Tenure” of the Law on Courts it was established:

When a judge of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and the Supreme Administrative Court of Lithuania reaches the age of 65, his powers may be prolonged by the institution which appointed him until he reaches the age of 70. In such cases the judge wishing to have the prolongation of his powers shall apply to the President of the Republic. The issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this Law.”

In Paragraph 3 (wording of 28 January 2003) of Article 57 titled “Judges’ Tenure” of the Law on Courts, it was established:

When a judge of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court reaches the age of 65, his powers may be prolonged by the institution which appointed him until he reaches the age of 70. In such cases the judge wishing to have the prolongation of his powers shall apply to the President of the Republic. The issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this Law.”

1.2. In Paragraph 2 (wording of 24 January 2002) of Article 73 titled “Appointment of a Judge of the Supreme Court” of the Law on Courts, it was established:

The candidates to a judicial office of the Supreme Court shall be selected and nominated by the President of the Supreme Court. This nomination shall not be binding on the President of the Republic.”

1.3. In Paragraph 2 (wording of 24 January 2002) of Article 79 titled “Appointment of the President of the Supreme Court and the Chairperson of a Division of the Supreme Court” of the Law on Courts, it was established:

The Chairperson of a division of the Supreme Court shall be appointed by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court from among the judges appointed to the Court.”

1.4. In Paragraph 3 (wording of 24 January 2002) of Article 81 titled “Release of the President, the Vice President and the Chairperson of a Division of the Court from Office” of the Law on Courts, it was established:

The Chairperson of a division of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court.”

1.5. In Paragraph 2 (wording of 24 January 2002) of Article 128 titled “Material and Technical Provision to Courts” of the Law on Courts, it was established:

Draft state investment programmes shall be approved by the Council of Courts, and the state investment programmes shall be managed by the Ministry of Justice.”

1.6. A group of members of the Seimas, the petitioner, requests an investigation (petition of 19 February 2004) into whether Paragraph 3 of Article 57, Paragraph 2 of Article 73, paragraph 2 of Article 79 and Paragraph 3 of Article 81 of the Law on Courts are not in conflict with Article 29, Paragraph 2 of Article 109 and Paragraphs 2 and 5 of Article 112 of the Constitution.

1.7. The Court of Appeal of Lithuania, the petitioner, requests an investigation into whether the provision of Paragraph 3 of Article 57 of the Law on Courts that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, is not in conflict with Paragraph 2 of Article 5, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, to the extent that, according to the petitioner, it prescribes that the President of the Republic may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office upon the expiry of his powers, without applying to the Council of Courts for advice.

1.8. A group of members of the Seimas, the petitioner, requests an investigation (petition of 2 November 2004) into whether Paragraph 2 of Article 128 of the Law on Courts is not in conflict with Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

1.9. It is clear from the arguments of the petitions of the groups of members of the Seimas (petitions of 19 February 2004 and 2 November 2004) and the Court of Appeal of Lithuania, the petitioners, that they doubted and requested the Constitutional Court to investigate whether:

Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution, and to the extent that, according to the Court of Appeal of Lithuania, the petitioner, it prescribes that the President of the Republic of Lithuania may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office upon the expiry of his powers, without applying to the Council of Courts for advice, also with Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is not in conflict with Paragraphs 2 and 5 of Article 112 of the Constitution;

Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts is not in conflict with Paragraph 5 of Article 112 of the Constitution;

Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts is not in conflict with Paragraph 5 of Article 112 of the Constitution;

Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts is not in conflict with Paragraph 2 of Article 5, Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

2. On 10 February 2003, the President of the Republic issued the Decree (No. 2048) “On Releasing a Judge of the Regional Court from Office”, in which it was established:

Article 1.

Following Item 11 of Article 84, Article 112 and Item 2 of Article 115 of the Constitution of the Republic of Lithuania and taking into account the advice of the Council of Courts, I release the judge of the Panevėžys Regional Court Jurgis Tautkevičius from office upon the expiry of his term of powers.

Article 2.

This decree shall come into force on 12 February 2003.”

2.1. The Court of Appeal of Lithuania, the petitioner, requests an investigation into whether, inter alia, the Decree of the President of the Republic of Lithuania (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with Paragraph 1 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution, with the constitutional principle of a state under the rule of law, as well as with Paragraph 1 of Article 45, with the provision of Paragraph 3 of Article 57 that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, and with Paragraph 2 of Article 70 of the Law on Courts.

2.2. It is clear from the arguments of the Court of Appeal of Lithuania, the petitioner, that it doubted and applied to the Constitutional Court requesting an investigation into whether Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 is not in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution, with the constitutional principle of a state under the rule of law, with Paragraph 1 (wording of 24 January 2002) of Article 45, with the provision of Paragraph 3 (wording of 28 January 2003) of Article 57 that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, as well as with Paragraph 2 (wording of 24 January 2002) of Article 70 of the Law on Courts.

3. It needs to be noted that the Court of Appeal of Lithuania, the petitioner, among other things requests an investigation into whether the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office upon the expiry of his powers, is not in conflict with the provision of Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, as well as with the Constitution. It has been mentioned that the same petitioner, the Court of Appeal of Lithuania, by the same petition requests an investigation into whether Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is not in conflict with the Constitution to the extent that, according to this petitioner, it prescribes that the President of the Republic of Lithuania may refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office upon the expiry of his term of powers.

It should be noted that it is not expressis verbis entrenched in Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts that the President of the Republic of Lithuania may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office after his powers have expired without applying to the Council of Courts for advice: while construing the said provision, the Court of Appeal of Lithuania, the petitioner, by itself formulated the legal regulation established in Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts. It is clear from the arguments of the petition of the Court of Appeal of Lithuania, the petitioner, that, in his opinion, the provision that the President of the Republic of Lithuania may, by himself, refuse to satisfy the request of the judge to prolong his powers until he reaches the age of 70 and release that judge from office after his powers have expired without applying to the Council of Courts for advice, is derived from the provision “the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law” explicitly entrenched in Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts.

A petition for the investigation of the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing references to laws (Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court). In the jurisprudence of the Constitutional Court, one follows the maxim that such juridical reasoning of the position of the petitioner concerning the compliance of the law (or another legal act having the force of a law) with the Constitution, where, on the one hand, one refers to a certain article of that law (or another legal act having the force of a law) while grounding the doubt on the compliance of a certain substatutory legal act with the Constitution and that law (or another legal act having the force of a law), and, on the other hand, one sets forth his doubt namely on the compliance of the article of this law (or another legal act having the force of a law) with the Constitution, should be regarded as contradictory, thus, it makes the position itself of the petitioner concerning the compliance of the impugned provisions of the law (or another legal act having the force of a law) with the Constitution ambiguous and very unclear (the Constitutional Court’s decision of 16 April 2004).

Thus, it should be held that the position of the Court of Appeal of Lithuania, the petitioner, on the compliance (to the extent specified by this petitioner) of Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts with the Constitution is contradictory, and its legal reasoning has deficiencies.

It should also be held that only the said discrepancy, in particular, when one takes account of the fact that the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is not in conflict (to the extent specified by this petitioner) with the Constitution, it does not have other essential deficiencies due to which it may not be considered, does not give grounds to treat the petition of this petitioner—the Court of Appeal of Lithuania—as not meeting the requirements established in Article 66 of the Law on the Constitutional Court and, under Article 70 of the Law on the Constitutional Court, to return it to the petitioner.

It should also be mentioned that, in the constitutional justice case at issue, also a group of members of the Seimas (petition of 19 February 2004), another petitioner, impugns the compliance of Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts with the Constitution.

II

On the compliance of Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts with Paragraphs 2 and 5 of Article 112 of the Constitution, on the compliance of Paragraph 2 (wording of 24 January 2002) of Article 79 of the same law with Paragraph 5 of Article 112 of the Constitution and on the compliance of Paragraph 3 (wording of 24 January 2002) of Article 81 of the same law with Paragraph 5 of Article 112 of the Constitution.

1. It has been mentioned that under Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts, the candidates to a judicial office of the Supreme Court shall be selected and nominated to the President of the Republic by the President of the Supreme Court, however, this nomination shall not be binding on the President of the Republic. Under Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts, the Chairperson of a division of the Supreme Court shall be appointed by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court from among the judges appointed to the Court. Under Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, the Chairperson of a division of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court.

2. The courts that, under the Constitution, implement the judicial power in Lithuania should be classed as belonging not to one, but to two or more (if that, while paying heed to the Constitution, is established in certain laws) systems of the courts. Under the Constitution and laws, at present there are three systems of courts in Lithuania: (1) the Constitutional Court executes constitutional judicial control; (2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional and local courts specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction; (3) under Paragraph 2 of Article 111 of the Constitution, for the consideration of administrative, labour, family and cases of other categories, specialised courts may be established—at present, one system of specialised courts, namely administrative ones, is established by law and is functioning, which is comprised of the Supreme Administrative Court and regional administrative courts (the Constitutional Court’s rulings of 13 December 2004, 16 January 2006, and 28 March 2006).

In the impugned Paragraph 2 (wording of 24 January 2002) of Article 73, Paragraph 2 (wording of 24 January 2002) of Article 79 and Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, the relations linked to the appointment and release of judges of courts of general jurisdiction are regulated.

The imperatives of the legal regulation regarding the formation (appointment, promotion, transfer (change of place of work) or release from office) of the corps of judges of courts of general jurisdiction which arise from the Constitution and which are discussed in this ruling of the Constitutional Court, should also be applied mutatis mutandis to the legal regulation regarding the formation of the corps of judges of specialised courts established under Paragraph 2 of Article 111 of the Constitution. However, the said imperatives are not to be applied for the legal regulation of the relations linked to the formation and renewal of the Constitutional Court because other provisions of the Constitution are designed for these relations.

3. In Paragraph 2 of Article 109 of the Constitution it is prescribed that while administering justice, the judge and courts shall be independent. The independence of judges and courts is one of the essential principles of a democratic state under the rule of law: while administering justice, courts must ensure the implementation of the right embodied in the Constitution, laws and other legal acts, guarantee the supremacy of law and protect human rights and freedoms. It should also 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, not a privilege but one of the main duties of a judge and courts arising from the right of every person who thinks that his rights or freedoms are violated to an independent and impartial arbiter of the dispute, which, under the Constitution and laws, would in essence solve the dispute at law, guaranteed in the Constitution (inter alia, in Paragraph 2 of Article 109, as well as in Paragraph 1 of Article 30, in which it is prescribed that the person whose constitutional rights or freedoms are violated shall have the right to apply to court) (the Constitutional Court’s rulings of 6 December 1995, 1 October 1997, 21 December 1999, 8 May 2000, 12 February 2001, 4 March 2003, 17 August 2004, 29 December 2004, 16 January 2006, and 28 March 2006).

One of the important aspects of the independence of the judge entrenched in the Constitution is that while administering justice all judges have equal legal status in the aspect that no different guarantees of independence of the judge while administering justice (deciding cases) may be established. While implementing justice, no judge is, nor may be subordinate to any other judge or to the President of any court (inter alia, the court where he works or the court of higher level). On the other hand, the principle of the equal legal status of judges does not mean that the material and social guarantees of judges may not be differentiated under clear, ex ante known criteria, which are not related to the implementation of justice while deciding cases (for example, under the term of a person’s position as judge).

The judicial power may implement its constitutional obligation and function to administer justice only when being free and independent from other state powers—legislative and executive—which are formed on the political basis. If the judicial power were not free and independent from the legislative and executive powers, it would not be fully-fledged. The fact that the judicial power is free and independent from other state powers is also determined by the fact that it, differently than other state powers, is formed not on the political but on the professional basis (the Constitutional Court’s rulings of 21 December 1999 and 12 July 2001, its conclusion of 31 March 2004, and its ruling of 28 March 2006). The Constitutional Court has held in its acts (inter alia, its rulings of 6 December 1995, 21 December 1999, 12 July 2001, and 13 May 2004) more than once: the fully-fledgedness and independence of the judiciary pre-supposes its self-regulation and self-governance, which includes, inter alia, the organisation of the work of courts and the activities of the professional corps of judges; 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 activity of courts is not and may not be considered an area of administration assigned to any institution of the executive; one may not demand that the judge followed a certain political guideline; it is only an independent institutional system of courts that may guarantee the organisational independence of courts as well as the procedural independence of judges—a necessary condition for an impartial and fair investigation of a case; the administering of courts must be organised in such a manner that the actual independence of judges would not be violated.

It should also be mentioned that the specified constitutional imperatives determine that the law may and has to establish such legal regulation according to which certain state institutions ensuring an independent administering of courts are organised under the judicial power, may be and must be established by law (the Constitutional Court’s ruling of 13 December 2004).

In its ruling of 28 March 2006, the Constitutional Court held that “it is not possible to construe the instance system of the courts of general jurisdiction that arises out of the Constitution as hierarchal one as no court of general jurisdiction of lower instance is subordinate to any court of higher instance in the administrative or organisational aspect or any other way: the courts of general jurisdiction of the first instance are neither subordinate to the courts of general jurisdiction of instance of appeal, nor instance of cassation, and the Court of Appeal of Lithuania is not subordinate to the Supreme Court of Lithuania”. In the said ruling of the Constitutional Court it is also held: “The instance system of the courts of general jurisdiction arising out of the Constitution may not be construed as restricting the procedural independence of the courts of general jurisdiction of lower instance, either: however, as mentioned before, under the Constitution, when adopting decisions in the cases of corresponding categories, the courts of general jurisdiction of lower instance are bound by decisions of courts of general jurisdiction of higher instance—precedents in the cases of these categories; courts of general jurisdiction of higher legal force (and their judges) may not interfere in the cases considered by courts of general jurisdiction of lower instance, nor give them any instructions, either obligatory or recommendatory, on how corresponding cases must be decided etc. From the aspect of the Constitution, such instructions (whether obligatory or recommendatory) would be regarded as acting by the corresponding courts (judges) ultra vires. Under the Constitution, court practice is formed only when courts decide cases themselves. A different construction of the provisions of the Constitution entrenching the instance system of courts of general jurisdiction, as well as the legal regulation based on that different construction of the provisions of the Constitution, would create preconditions for courts of general jurisdiction of higher instance (or their judges) to assume the functions that are not provided for to them and the powers that are not established in the Constitution, would deny the independence of courts entrenched in the Constitution, would violate the provision of Paragraph 2 of Article 109 of the Constitution that while administering justice, the court and judges shall be independent, and the provision of Paragraph 3 of this article that when considering cases, judges shall only obey the law.”

In this context, it should be noted that self-governance of the Judiciary, as an independent state power, also presupposes that no single officer of this power may be treated as the manager of the whole judiciary or a representative in relations with other state powers, nor any institution of judges (judicial power) may be treated as an institution governing the whole judiciary. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, the self-governing judicial power may not be over-centralised in general; if the judicial power were very centralised, let alone if monocracy prevailed in it, its self-governance would be denied in essence and there could arise a threat to the independence of the judge and courts when they are deciding cases, i.e. when they administer justice. One must avoid this while creating the system of self-governance institutions of the Judiciary, as independent branch of state power.

4. The autonomy and independence of the judicial power does not mean that it and other state powers—legislative and executive—may not co-operate. The Constitutional Court has held that when general functions and tasks of the state are being accomplished, the activities of state institutions are based on their cooperation, therefore, their interrelations should be defined as inter-functional partnership (the Constitutional Court’s rulings of 10 January 1998 and 21 April 1998).

It should be emphasised that the interaction of state power may not be treated as their conflict or competition, thus, also the checks and balances that the judicial power (its institutions) and other state powers (its institutions) have towards each other, may not be treated as mechanisms of the opposition of powers. The model of reciprocity between state powers entrenched in the Constitution is also described by the reciprocal control and balance of state powers (their institutions), which does not allow one state power to dominate in respect of the other (others), and by their cooperation, of course, without overstepping the limits established by the Constitution—without interfering in the implementation of powers of another state power.

5. One must also heed the principle of independence of the judge and courts entrenched in the Constitution when establishing by means of laws the procedure of the appointment, promotion (i.e. appointment as a judge of a court of higher level after release from previous office or appointment to the leading posts or higher posts at the same court), transfer of judges (change of place of work) or their release from office and when regulating other relations linked to the appointment, promotion, transfer of judges or their release from office.

In the context of the constitutional justice case at issue, it should be emphasised that self-regulation and self-governance of the judiciary also includes the participation of a special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution when forming the corps of judges. In its ruling of 21 December 1999, the Constitutional Court held that “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-governance of the judiciary which is an independent State power”. While regulating the relations linked to appointment, promotion, transfer of judges or their release from office, one may not deny the indicated special competence of the institution of judges, its constitutional nature and purpose.

6. It should also be emphasised that the independence of the judge and courts entrenched in the Constitution does not create any preconditions for a judge to avoid to carry out his duties properly, and for courts—to avoid administration of justice in such a way as requires the Constitution. The self-regulation and self-governance of the Judiciary, which stems from the Constitution, inter alia, the powers of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution, in the course of the formation of the corps of judges, may not be a pretext to ignore the powers of other branches of state power (institutions thereof) in this area, to create preconditions for disregarding the constitutionally grounded interests of society that the corps of judges would be formed fairly and transparently, that the persons for a judge’s office would be chosen, the judges would be appointed, promoted, transferred (their places of work changed) or released from office only on the basis of their professional preparation and such personal features and other circumstances which determine their suitability or unsuitability for this activity (for the judge’s office in a certain court). The principles of responsible governance, a state under the rule of law and justice, as well as the right of every person to a fair hearing and other provisions entrenched in the Constitution imply that the legislature must establish such procedure for the formation of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution, as well as such basis for the implementation of its powers (organisation of work) that it would be possible to ensure the accountability and (if there are grounds provided for by law) responsibility of this special institution of judges (and members thereof) for the adopted decisions and that the self-governance of the judiciary could not become any arbitrariness free from any control and balances. By establishing this, the legislature must heed the norms and principles of the Constitution, inter alia, not deny the independence and fully-fledgedness of the judiciary; it may not entrench any such legal regulation that the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution would become subordinate to the legislative power and/or the executive power, i.e. state powers formed on the political basis.

7. The subjects who have the powers to appoint, promote or release judges from their office, as well as to transfer judges (change their places of work), are established in the Constitution. Under Paragraph 2 of Article 112 of the Constitution, justices of the Supreme Court as well as its President chosen from among them shall be appointed and released by the Seimas upon the submission of the President of the Republic. Judges of the Court of Appeal as well as its President chosen from among them shall be appointed by the President of the Republic upon the assent of the Seimas (Paragraph 3 of Article 112). Judges and Presidents of local, regional, and specialised courts shall be appointed, and their places of work shall be changed by the President of the Republic (Paragraph 4 of Article 112).

Paragraphs 2, 3 and 4 of Article 112 of the Constitution which regulate the appointment, promotion, transfer of judges or their release from office, are related to Item 11 of Article 84 of the Constitution, under which, the President of the Republic, inter alia: shall submit candidatures of the Supreme Court justices to the Seimas and, upon the appointment of all the Supreme Court justices, submit from among them to the Seimas the President of the Supreme Court; appoint judges of the Court of Appeal, and from among them, provided the Seimas gives assent to their candidatures, the President of the Court of Appeal; appoint judges and Presidents of regional and local courts, and change their places of work; in cases provided for by law, shall submit that the Seimas release judges from office.

In this context, it should be noted that even though Paragraph 3 of Article 112 of the Constitution expressis verbis regulates only the relations of the appointment of the judges of the Court of Appeal and (when the judges of the Court of Appeal are appointed) the President of this Court, the systemic construction of this paragraph (when its provisions are linked to Item 11 of Article 84 of the Constitution and to the constitutional principle of a state under the rule of law) implies that the judges of the Court of Appeal and the President of this court must be released from their office under the same procedure as they are appointed, i.e. the powers to release them from office, upon the assent of the Seimas, has the President of the Republic.

It should also be noted that under Articles 74 and 116 of the Constitution, for a gross violation of the Constitution, a breach of the oath, or when it transpires that a crime has been committed, certain judges of courts of general jurisdiction, namely the President and justices of the Supreme Court, the President and judges of the Court of Appeal (by the way, as well as the President and justices of the Constitutional Court) may be removed from office according to the procedure for impeachment proceedings.

8. It should be held that in the Constitution the procedure for appointment to and release of judges and Presidents of courts of general jurisdiction of various levels from office is established, under which these judges and Presidents of courts are appointed and released by other institutions of state power—executive power and legislative power—correspondingly, the President of the Republic and the Seimas, i.e. the institutions which are formed on the political basis. The President of the Republic appoints and releases the judges and Presidents of certain courts of general jurisdiction for which he does not have to apply to the Seimas, while other judges and Presidents of courts of general jurisdiction are appointed and released by the President of the Republic, but he must get an assent of the Seimas beforehand; other judges and Presidents of courts of general jurisdiction are appointed and released by the Seimas, upon the presentation of the President of the Republic. It needs to be emphasised that the Seimas participates only when appointing and releasing judges and Presidents of courts of general jurisdiction of two highest levels and not of all courts, while the President of the Republic participates (in the ways established in Paragraphs 2, 3 and 4 of Article 112 and Item 11 of Article 84 of the Constitution) when appointing and releasing judges of courts of general jurisdiction of all levels (starting from the lowest level—local courts—and finishing by the highest level—the Supreme Court), however, his powers regarding judges of different courts of general jurisdiction are different: (1) in order to appoint or release a judge of a local or regional court or the President of a local or regional court, a decision of the President of the Republic is necessary, while the Seimas in this area does not enjoy any powers under the Constitution; (2) in order to appoint or release a judge of the Court of Appeal or the President of this court, the President of the Republic must apply to the Seimas and, if he gets the assent of the Seimas, he may appoint the corresponding person as a judge of the Court of Appeal or the President of this court or release the corresponding judge of the Court of Appeal or the President of this court from his office, also, inter alia, if certain circumstances significant to such appointment or release from office become clear, he might decide not to appoint that person as a judge of the Court of Appeal or the President of this court, and submit the Seimas with another candidature, or not to release the corresponding judge of the Court of Appeal or the President of this court from office (if it is not obligatory to release that judge from office under the Constitution); (3) in order to appoint or release a justice of the Supreme Court or the President of this court, the President of the Republic must submit the Seimas with a corresponding person for appointment or release from office, but the final decision on the appointment or decision of a justice of the Supreme Court or the President of this court is adopted by the Seimas.

9. Item 11 (provisions on the appointment and release from office of judges thereof) of Article 84, Paragraphs 2, 3 and 4 of Article 112 of the Constitution have to be construed inseparably from Paragraph 5 of Article 112 of the Constitution, in which it is prescribed that a special institution of judges provided for by law shall advise the President of the Republic on the appointment, promotion, transfer of judges, or their release from office.

10. Under the Constitution, only the Constitutional Court shall have the powers to officially construe the Constitution and to form the official constitutional doctrine. In the Constitutional Court acts the provisions—norms and principles—of the Constitution are construed. The Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution), thus, the official constitutional doctrine is formed by following the fact that all the provisions of the Constitution are interrelated not only formally but also according to their content: the content of some provisions of the Constitution determines the content of its other provisions. The Constitutional Court has held in its acts more than once that all the provisions of the Constitution constitute a harmonious system, that a balance exists between the values consolidated in the Constitution, that it is not permitted to construe any provision of the Constitution literally, that no provision of the Constitution may be opposed against other provisions of the Constitution, that no provision of the Constitution may be construed so that the content of another constitutional provision could be distorted or denied, since the essence of the whole constitutional regulation would thus be distorted and the balance of the constitutional values would thus be disturbed. In the official constitutional doctrine, inter alia, the content of various constitutional provisions, the relation of their content, the balance of constitutional values and the essence of the constitutional legal regulation as a whole are disclosed.

The official constitutional doctrine is formed when the Constitutional Court investigates whether a certain constitutional law (part thereof) is not in conflict with the Constitution, whether a certain law (part thereof) as well as the Statute of the Seimas (part thereof) is not in conflict with the Constitution and constitutional laws, whether a certain substatutory legal act (part thereof) of the Seimas is not in conflict with the Constitution, constitutional laws and laws and with the Statute of the Seimas, whether a certain act (part thereof) of the President of the Republic is not in conflict with the Constitution, constitutional laws and laws, and whether a certain act (part thereof) of the Government is not in conflict with the Constitution, constitutional laws and laws.

In its ruling of 28 March 2006, the Constitutional Court held that the development of the constitutional jurisprudence and the official doctrine formulated therein is characteristic of the fact that the official constitutional doctrine is not formulated all “at once” on any issue of the constitutional legal regulation, but “case by case”, by supplementing the elements (fragments) of the said doctrine, disclosed in the previous constitutional justice cases, adopted in the acts of the Constitutional Court with others, which are disclosed in the acts of the Constitutional Court adopted in the new cases of constitutional justice. The formation of the official constitutional doctrine (both as a whole and on every individual issue of the constitutional legal regulation) is not a one-off act but a gradual and consecutive process. This process is uninterrupted and is never fully finished. While construing the norms and principles of the Constitution, explicitly and implicitly entrenched in the text of the Constitution, there is always a possibility of formulating the official constitutional doctrinal provisions (i.e. to disclose such aspects of constitutional legal regulation) which have not been formulated in the previous constitutional justice cases adopted in the acts of the Constitutional Court, if it is necessary because of the logic of the considered constitutional justice case. When the Constitutional Court considers new constitutional justice cases every time subsequent to petitions of petitioners, the official constitutional doctrine formulated in the previous acts of the Constitutional Court (on every individual issue on the constitutional legal regulation, which is important to a corresponding case) is every time supplemented with new fragments. Thus, by formulating new official constitutional doctrinal provisions the diversity and completeness of the legal regulation entrenched in the Constitution—the supreme legal act—is disclosed. In the said ruling pf the Constitutional Court it is also held that the principle of a state under the rule of law enshrined in the Constitution implies continuity of jurisprudence and that the continuity of jurisprudence must be ensured not only by the courts of general jurisdiction, inter alia, the Supreme Court of Lithuania, the Court of Appeal of Lithuania, as well as the courts of the highest instances of the systems of specialised courts established under Paragraph 2 of Article 111 of the Constitution (in the system of administrative courts—the Supreme Administrative Court), but also by the Constitutional Court.

11. While construing the provisions of the Constitution, in its acts the Constitutional Court has formed a broad official constitutional doctrine of the judiciary, has disclosed most of its aspects, inter alia, related with the independence of a judge and courts, organisation of the system of courts, the relations between the judicial power with the legislative and executive powers, formation of the corps of judges. In this context, it should be noted that the Constitutional Court, when investigating, subsequent to petitions of petitioners, whether the provisions of certain laws were not in conflict with the Constitution, in its rulings of 21 December 1999, 13 December 2004 and 2 June 2005 also disclosed certain elements of the status of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution—namely those, which were necessary in the corresponding constitutional justice cases, while deciding whether the provisions of the laws impugned by the petitioners, inter alia, the provisions of the Law on Courts (wording of 8 April 1998), under which, the Minister of Justice had powers to submit to the President of the Republic judges of local and regional courts, judges of the Court of Appeal and Presidents of these courts for appointment, were not in conflict with the Constitution.

The official constitutional doctrine which discloses the constitutional status of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is further developed in this ruling of the Constitutional Court so that also the elements of the constitutional status of the said special institution of judges which are necessary to be disclosed in order that it could be decided whether the articles (parts thereof) of the Law on Courts impugned by the petitioners are not in conflict with the Constitution, as well as whether Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 is not in conflict with the Constitution and with articles (parts thereof) of the Law on Courts specified by the Court of Appeal of Lithuania, the petitioner. The official constitutional doctrine which discloses the constitutional status of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is developed in this ruling of the Constitutional Court also in the de lege ferenda aspect so that the legislature, when regulating the relations linked to the appointment, promotion, transfer of judges or their release from office, would not diverge from the constitutional concept of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution.

12. It has been mentioned that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution also participates (thus, also has certain constitutional powers) when forming the corps of judges. In the area of the formation of the corps of judges, this special institution of judges (which, as mentioned before, is an important element of self-governance of the Judiciary which is an independent state power), is a balance to the President of the Republic, who is a subject of the executive (the Constitutional Court’s rulings of 21 December 1999 and 13 December 2004). The fully-fledgedness, autonomy, independence of the judiciary and the constitutional principle of the separation of powers does not allow construing the constitutional purpose and functions of the said special institution of judges in such a way so that its role of a balance to the President of the Republic in the area of the formation of the corps of judges would be denied or ignored. On the other hand, as it was said, the checks and balances which the judiciary (institutions thereof) and other state powers (institutions thereof) have with respect to each other may not be treated as opposition mechanisms of corresponding powers, thus, it would be unfair to construe that the constitutional purpose of the said special institution of judges is only to be a balance to the President of the Republic in the area of the formation of the corps of judges because also partnership and cooperation between the President of the Republic and this special institution of judges is necessary while forming it (in particular, paying heed to the constitutionally grounded and defended by the Constitution interest of the society that the corps of judges be formed fairly and transparently, that the persons for a judge’s office be chosen only on the basis of their professional preparation and such personal features, and other circumstances which determine their suitability or unsuitability for this activity (the judge’s office in a certain court)).

13. It should be emphasised in particular that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is a constitutional state institution (though its exact title is not specified in the Constitution) (the Constitutional Court’s ruling of 13 December 2004). The formula “institution of judges” of Paragraph 5 of Article 112 of the Constitution implies that this institution has to be collegial. Such special institution of judges may not be not formed. The procedure and basis of its formation must be established by law. The constitutional powers of this special institution of judges may not be taken over or seized by any individual official (inter alia, by any judge or other official of the judicial power, nor the President of any court), as well as by any other institution. The special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution may not be treated as a body working on the basis of public activities. It may not function in a manner so that the requirements of due process of law would not be followed (in this special institution of judges itself and in relations with other state institutions, inter alia, in the relations with the President of the Republic). Its decisions give rise to legal effects.

14. In this context, it should be noted that, as the Constitutional Court held in its ruling of 21 December 1999, 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 established in Paragraph 5 of Article 112 of the Constitution, the advice of the special institution of judges established in Paragraph 5 of Article 112 of the Constitution gives rise to legal effects: in case there is no advice from this institution, the President of the Republic may not adopt decisions on appointment, promotion, transfer of judges or those on their release from office.

This doctrinal provision means, inter alia, that the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution may not be interpreted as a recommendation for the President of the Republic to appoint a person as a judge, or not to appoint him, to promote a judge, or not to promote him, to transfer him, or not to transfer him, to release or not to release him from office. However, if the said advice was only a recommendation, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution would not perform one of the functions of the balances of the judicial power towards the executive power and, while forming the corps of judges, the executive power would dominate with respect to the judicial power, thus, there would be grounds to state that certain preconditions are also created (not prevented) to violate the independence of judges and courts.

15. It should be noted that the legal consequences of the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to the President of the Republic depend on the fact whether it is applied to this institution regarding the appointment of a judge, or his promotion, transfer or his release from office.

15.1. In such cases, when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the appointment, promotion or transfer of a judge, and this special institution of judges advises to appoint the person as a judge, to promote the judge or to transfer him, such advice is not binding on the President of the Republic. This means that the President of the Republic (inter alia, if certain circumstances significant to such appointment or release from office become clear) might decide not to appoint that person as a judge, not to promote the judge, or not to transfer him (and if a judge of the Supreme Court or the Court of Appeal is appointed, promoted or transferred—might decide not to submit his candidature to the Seimas). Under the Constitution, in such cases, the President of the Republic may apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the appointment of another person as a judge, the promotion or transfer of another judge.

15.2. Different legal effects of the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to the President of the Republic appear when the President of the Republic applies to this special institution of judges for it to advise him on the appointment, promotion or transfer of a judge, and it either expressis verbis advises the President of the Republic not to appoint that person as a judge, not to promote a judge or not to transfer him or it replies to the President of the Republic that it does not advise him to appoint that person as a judge, promote a judge or transfer him. It should be emphasised that such “non-advice” to the President of the Republic to appoint a person as a judge, promote a judge or transfer him, no matter in what way it is expressed in the corresponding act of the said special institution of judges, is legally equal to the expressis verbis formulated advice that the President of the Republic not appoint a person as a judge, nor promote a judge, nor transfer him. In such cases, under the Constitution, the President of the Republic may not (correspondingly) appoint that person as a judge, nor promote, nor transfer a judge (and if a judge of the Supreme Court or the Court of Appeal is appointed, promoted or transferred—he may not submit his candidature to the Seimas). A different construction (inter alia, such that the President of the Republic may disregard the said advice and still to appoint that person as a judge, transfer or promote a judge (and if a judge of the Supreme Court or the Court of Appeal is appointed, promoted or transferred—may submit his candidature to the Seimas)) of the legal force and legal circumstances of the advice of the said special institution of judges not to appoint the person as a judge, not to promote or transfer the judge would mean that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution which is formed only on the professional basis is not a balance to the President of the Republic—a political institution of the state power—in the area of the formation of the corps of judges. Such construction would also be inconsistent with the principle of independence of the judge and courts, nor with the balance of state powers entrenched in the Constitution.

15.3. Still other different legal effects of the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to the President of the Republic appear when the President of the Republic applies to this special institution of judges for advice on the release of a judge from office.

In Article 115 of the Constitution it is established:

Judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law in the following cases:

1) of their own will;

2) upon expiration of the term of powers or upon reaching the pensionable age established by law;

3) due to the state of health;

4) upon the election to another office or upon their transfer, with their consent, to another place of work;

5) when their conduct discredits the name of judges;

6) upon coming into effect of court judgments convicting them.”

15.3.1. While construing the legal regulation entrenched in Article 115 of the Constitution, it should be held that the grounds for release of a judge from office are established in it (the Constitutional Court’s rulings of 22 December 1994 and 6 December 1995). Under this article, judges are released from office in the following cases: when the judge himself, without anybody forcing him (on his own will) requests to be released from office—resigns (Item 1 of Article 115 of the Constitution), upon expiration of the term of powers or upon reaching the pensionable age established by law (Item 2 of Article 115 of the Constitution), when the state of health of the judge is such that he may not perform the duties of a judge (Item 3 of Article 115 of the Constitution), upon the election to another office or upon his transfer, with his consent, to another place of work (Item 4 of Article 115 of the Constitution), when his conduct discredited the name of judges (Item 5 of Article 115 of the Constitution) and upon coming into effect of a court judgment convicting him (Item 6 of Article 115 of the Constitution). The cases and grounds for the judge’s release from office established in Article 115 of the Constitution differ, inter alia, by the fact that some of them (expiration of the powers or reaching the pensionable age established by law provided for in Item 2 of Article 115 of the Constitution; coming into effect of a court judgment convicting him provided for in Item 6 of Article 115 of the Constitution) are related only to the establishment (statement) of the fact of objective nature, while others (the resignation—request to release from office provided for in Item 1 of Article 115 of the Constitution; the state of health not allowing him to perform the duties of a judge, provided for in Item 3 of Article 115 of the Constitution; the election to another office or his transfer, with his consent, to another place of work provided for in Item 4 of Article 115 of the Constitution and the conduct discrediting the name of judges provided for in Item 5 of Article 115 of the Constitution) imply not only the establishment (statement) of the corresponding facts, but also their assessment.

15.3.1.1. It is clear that in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him on the release of a judge from office because his term of powers has expired or he reached the pensionable age established by law or the court judgment convicting that judge has come into effect, the said special institution of judges must make sure whether the specified facts actually exist and, if they do, it must advise the President of the Republic to release the judge from office. It should be emphasised that if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution establishes that the said objective facts really exist, it, under the Constitution, may not decide not to advise the President of the Republic to release the judge from office, and the President of the Republic, when he receives such advice, must release the corresponding judge from office (if the judge to be released from office is a justice of the Supreme Court—he must propose that the Seimas release him from office and if the judge to be released from office is a judge of the Court of Appeal—he must request for the assent of the Seimas in order to release him from office). It should be held that, under the Constitution, in such cases the judge must be released from office.

In the context of the constitutional justice case at issue, it should be noted that the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted). Such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions would be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated. However, it should be emphasised that in every case on such prolongation of the powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if the powers of a justice of the Supreme Court are prolonged) a Seimas resolution must be passed. In every such case, the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the prolongation of powers (and if the powers of a judge of the Court of Appeal are prolonged—also the assent of the Seimas) is necessary; such advice of the said special institution of judges to prolong the powers of the judge also means its advice to release the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished; thus, the advice of the said special institution of judges to prolong the powers of a judge also means that the powers of the judge must be discontinued under the established procedure, when the corresponding legal fact to which the prolongation of the powers of a judge is related happens—the consideration of corresponding cases is finished. In the context of the constitutional justice case at issue, it should be particularly emphasised that when this legal fact to which the prolongation of the powers of a judge is related happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the release of the judge from office when his powers have expired or when he has reached pensionable age established by law once again (as the corresponding advice has already been received).

One must also pay heed to the fact that the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis.

15.3.1.2. Meanwhile, in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him on the release of a judge from his office, as there is one (or several) of the bases provided for in Items 1, 3, 4 and 5 of Article 115 of the Constitution, the said special institution of judges must (accordingly) not only make sure that the judge requests to be released from office, but also assess, if he is doing so at his own will, if he is not forced to do so (Item 1 of Article 115 of the Constitution), it must not only make sure if the judge has health problems, but also to assess under the procedure established by law, whether his state of health is such that he may not perform the duties of a judge (Item 3 of Article 115 of the Constitution), not only make sure if the judge has been elected to another office or transferred to another place of work, but also assess whether he has been elected to this office or transferred to another place of work with his consent (Item 4 of Article 115 of the Constitution), not only make sure that there has been a certain conduct (deed) of the judge, but also to assess whether his conduct (deed) really discredited the name of judges (Item 5 of Article 115 of the Constitution). If (accordingly) the judge really of his own will requests to be released from his office, his state of health is really such that he may not perform the duties of the judge, he has really been elected to another office or transferred to another place of work with his consent, has really discredited the name of judges by his conduct, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution must advise the President of the Republic to release that judge from office. It should be emphasised that in such cases, the said special institution of judges may not decide not to advise the President of the Republic to release the judge from office, and the President of the Republic, after he has received such advice, has the powers to release the judge from his office (if a justice of the Supreme Court is released from office—he has the powers to propose that the Seimas release him from office and, if a judge of the Court of Appeal is released from office—he has the powers to request for the assent of the Seimas in order to release him from office); this must be done without delay. But, if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution holds that (accordingly) even though the judge formally requests to be released from office on his own will, in reality he is doing so after he has experienced someone’s unlawful influence, he is under pressure or is in any other way impermissibly urged by certain persons or organisations (institutions), that even though a judge has health problems, his state of health is not such that he would not be able to perform the duties of a judge, that even though the judge has been elected to another office or transferred to another place of work, it has been done without his consent, that even though there has been a certain conduct (deed) of a judge, he has not discredited the name of judges by that conduct (deed), the special institution of judges may not advise the President of the Republic to release that judge from office, and the President of the Republic, when he does not receive such advice, may not release him from office.

On the other hand, in general also such situations (although, very rare) are possible, where, after the President of the Republic has already applied to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of a judge from office and after this institution has already advised the President of the Republic to release that judge from office, the grounds on which the judge had to be released from office disappears. For instance, the judge, after he has stated that he intends to resign, may apply to, and request, the President of the Republic not to release him from office, if the circumstances have changed. In such (exceptional) cases the President of the Republic enjoys certain freedom of discretion.

15.3.2. It should be emphasised that the arising-from-the-Constitution impossibility of the President of the Republic to release a judge from office (if the judge to be released from office is a justice of the Supreme Court—the impossibility of proposing that the Seimas release him from office and if the judge to be released from office is a judge of the Court of Appeal—the impossibility of requesting for the assent of the Seimas in order to release him from office) without the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is a very important guarantee of independence of the judge and courts, one of the means which help the judges of all the courts of general jurisdiction (as well as of all the specialised courts established under Paragraph 2 of Article 111 of the Constitution) with no exception to protect themselves from the interference of state power and governance institutions, members of the Seimas and other officials, political parties, political and public organisations and other persons with the activities of the judge or the court, which is expressis verbis prohibited (and for which the legislature is obliged to provide liability) by Paragraph 1 of Article 114 of the Constitution.

15.3.3. It should also be mentioned that a judge, who thinks that he has been released from office groundlessly and unlawfully has the right, under the Constitution, to apply to court regarding the defence of his violated right. The Constitutional Court has held in its acts more than once that the right of a person, who thinks that his rights or freedoms are violated, to apply to court is an absolute one, that this right may not be artificially restricted or its implementation may not be unreasonably impeded, that it is not permitted to deny this right, that, under the Constitution, the legislature has the duty to establish such legal regulation whereby all disputes regarding violation of rights or freedoms of individuals may be decided in court.

16. In its ruling of 21 December 1999, the Constitutional Court held that 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 provided for by law specified in Paragraph 5 of Article 112 of the Constitution, this special institution of judges must advise 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.

This does not mean that certain exceptions do not stem from the Constitution, when it is not necessary to apply to this institution concerning such advice.

16.1. While construing the quoted provisions of the official constitutional doctrine in the context of other provisions of the Constitution, in its ruling of 2 June 2005, the Constitutional Court held that, under the Constitution, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution also has no powers to deny or limit the constitutional right of the President of the Republic, the Speaker of the Seimas and the President of the Supreme Court to present to the Seimas a candidate to justices of the Constitutional Court and the right of the Seimas either to appoint the presented person as a justice of the Constitutional Court, or not to appoint him, as in such a way preconditions would be created to impede the renewal of the Constitutional Court—one of the institutions of the state power consolidated in the Constitution. In the said ruling of the Constitutional Court it was also held that “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.” It was also held in the Constitutional Court’s ruling of 2 June 2005 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. <…> When justices of the Constitutional Court are being appointed, only the state officials who submit the candidates to the Seimas and the Seimas shall have the corresponding powers. <…> the special institution of judges provided for by law specified 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. <…> 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. <…> before 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 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 <…> 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 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.”

On the basis of analogous arguments, it should be held that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, under the Constitution, has no powers to advise the President of the Republic concerning the release of a judge from office also in such cases, when a judge of any court of the Republic of Lithuania is appointed to another office in cases when some other state institution established in Paragraph 1 of Article 5 of the Constitution, which executes state power in Lithuania (except courts of general instance and specialised courts established under Paragraph 2 of Article 111 of the Constitution, regarding which explicit provisions are entrenched in the Constitution establishing the corresponding powers of the said special institution of judges to advise the President of the Republic), is being formed.

Taking account of the fact that, under the Constitution, a judge shall have no right to be elected member of the Seimas or President of the Republic until he holds the respective office (the Constitutional Court’s ruling of 25 May 2004), it should be held that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution does not, under the Constitution, enjoy the powers to advise the President of the Republic on release from office of a judge in the cases when the judge who is released from office is a judge of a certain court of the Republic of Lithuania appointed as a justice of the Constitutional Court, and in such cases when the judge who is released from office is a judge of a certain court of the Republic of Lithuania who (when forming a Government or changing its composition) is appointed as a member of the Government (Prime Minister or a minister).

16.2. It has been mentioned that, under Articles 74 and 116 of the Constitution, for a gross violation of the Constitution, a breach of the oath, or when it transpires that a crime has been committed, the judges of courts of general jurisdiction, namely the President and justices of the Supreme Court, the President and judges of the Court of Appeal (as well, as the President and justices of the Constitutional Court) may be removed from office according to the procedure for impeachment proceedings.

In such cases, under the Constitution, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution does not have any powers, either, to advise the Seimas, whether to remove the President of the Supreme Court, a judge of this court, the President of the Court of Appeal and a judge of this court from office according to the procedure for impeachment proceedings. In such cases the balance for the decisions of the Seimas—a political institution, is the Constitutional Court—an institution of judicial power (the Constitutional Court’s conclusion of 31 March 2004).

17. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, an advice of the special institution of judges provided for by law specified in its Paragraph 5 of Article 112 is necessary when appointing, promoting, transferring or releasing from office any judge of the court of general jurisdiction or the President of this court (as well as a judge of specialised courts established under Paragraph 5 of Article 112 of the Constitution), save the said exceptions which stem from the Constitution, when the President of the Republic need not apply for such advice because a judge is being released from office due to the fact that he is appointed as a member of the Government (Prime Minister or a minister) or as a justice of the Constitutional Court, as well as, when the President or a justice of the Supreme Court and the President or a judge of the Court of Appeal is released from office according to the procedure for impeachment proceedings. Thus, the President of the Republic must receive such advice also in the cases when a judge (of local or regional court) is appointed or released from office only by a decision of the President of the Republic, when the Seimas does not participate in general, and in such cases when the President of the Republic applies to the Seimas for advice concerning the appointment or release from office of a judge of the Court of Appeal or the President of this court, and in such cases, when the President of the Republic submits the Seimas for appointment or release from office of a justice of the Supreme Court or with the President of this court. In all the cases (save the discussed exceptions which stem from the Constitution itself), an advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is obligatory for the President of the Republic—it is an inseparable, constitutionally obligatory part of the procedure for appointment, promotion (i.e. appointment as a judge of higher level while releasing from previous office or appointment to the leading or higher post at the same court), transfer (change of place of work), and release from office of judges. If the President of the Republic has not received such advice, he may not appoint or release from office a judge or President of the local and regional court, may not apply to the Seimas for advice concerning the appointment or release from office of a judge of the Court of Appeal or the President of this court and may not submit the Seimas for appointment or release of a justice of the Supreme Court or the President of this court.

18. It needs also to be emphasised that the constitutional institute entrenched in Paragraph 5 of Article 112 of the Constitution—the application of the President of the Republic to the special institution of judges provided for by law specified in this paragraph for advice concerning the appointment, promotion, transfer of judges or their release from office means not only the fact that the President of the Republic has the duty to apply to the special institution of judges specified in this paragraph for the corresponding advice when there is a need to appoint, promote, transfer a judge or release him from his office, but also the fact that this special institution of judges, when it has received the corresponding application of the President of the Republic, has a constitutional duty to consider such application and either to advise the President of the Republic (accordingly) to appoint a person as a judge of a local or regional court, to promote, transfer a judge or release him from office of a local or regional court, to apply to the Seimas for a consent concerning the appointment, promotion, transfer or release from office of a judge of the Court of Appeal or the President of this court, to submit the Seimas for appointment or release from office of a justice of the Supreme Court or the President of this court, or to advise the President of the Republic not to appoint as a judge of a local or regional court, not to promote, transfer or release from office a judge of the regional court, not to apply to the Seimas for a consent concerning the appointment, promotion, transfer or release from office of a judge of the Court of Appeal or the President of this court. When such an advice must be given, it is obligatory to strictly follow the requirements of due process of law and after only the professional preparation of the corresponding persons and such personal qualities, other circumstances which determine their suitability or non-suitability for the corresponding office (or a judge’s job in general) have been assessed.

It should be noted that the Constitution does not provide and does not tolerate any such situation, where the special institution of judges provided for by law specified in its Paragraph 5 of Article 112 does not advise the President of the Republic after he has applied to this special institution of judges for advice concerning the appointment, promotion, transfer of judges or their release from office, or when it advises him not on the issue concerning which it was applied; under the Constitution, the said special institution of judges must clearly and unambiguously advise the President of the Republic (accordingly) to appoint a person as a judge, promote, transfer a judge or release him from office (and if a justice of the Supreme Court or a judge of the Court of Appeal is released from office—to advise to submit a person for the Seimas to appoint or release from office) or to advise not to appoint a person as judge, not to promote, not to transfer and not to release from office (and if a justice of the Supreme Court or a judge of the Court of Appeal is appointed, promoted, transferred or released from office—to advise not to submit the person for the Seimas to appoint or release him from office).

It should also be noted that, under the Constitution, also such legal situations are impossible, where the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution advises the President of the Republic concerning the appointment of a certain person as a judge, promotion, transfer of a judge or his release from office on its own initiative, even though the President of the Republic has not applied to it on that. The said institution may implement the powers established in Paragraph 5 of Article 112 of the Constitution only at the time (afterwards), when the President of the Republic has applied to it on that for a corresponding advice.

It has been mentioned that only after the President of the Republic has received an advice (accordingly) to appoint a person as a judge, to promote, transfer a judge or release him from office, he may appoint the person as a judge of the local or regional court, to promote, transfer a judge or release him from office, apply to the Seimas for a consent concerning the appointment, promotion, transfer or release from office of a judge of the Court of Appeal or the President of this court, to submit the Seimas for appointment, promotion, transfer or release from office of a justice of the Supreme Court, or for appointment, promotion, transfer or release from office of the President of this court.

19. One must also pay attention to the fact that, under the Constitution, it is not possible to establish any such legal regulation where the President of the Republic, before he applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice concerning the appointment, promotion, transfer of judges or their release from office, would have to co-ordinate such application with a certain state institution, a certain state official, another institution or any other person. Under the Constitution, the decisions of no state institutions, state official, other institutions nor any other person may become binding, nor are binding on the application of the President of the Republic to the said special institution of judges for advice.

20. It is also not possible to establish by law any such legal regulation that while applying the to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice concerning the appointment of a person as a judge, promotion or transfer of a judge, the President of the Republic would be obliged to submit this special institution of judges not one but more candidatures of persons to the same vacancy, and that the said special institution of judges would have to and/or be able to choose from the persons submitted by the President of the Republic and to advise the President of the Republic concerning the appointment of this person as a judge, or his promotion or transfer.

Under the Constitution, the legislature has the powers (while heeding the norms and principles of the Constitution) to establish the selection criteria for the persons who aspire to become judges, as well as to establish how the corps of the candidates aspiring to become judges is formed, the corps of candidates aspiring to become judges of courts of higher level is formed, etc. The legal regulation establishing this may be differentiated, inter alia, according to the level of the court in which a person seeks to become a judge. The Constitution also does not prohibit establishing such a procedure of formation of the corps of persons aspiring to become judges, while the persons who have university higher legal education and who aspire to become judges must pass a special examination or exams, when it is checked whether the person has enough professional knowledge in order to hold the office of a judge. However, it should be noted that the Constitution does not imply a possibility of establishing any such legal regulation whereby the persons who have passed the corresponding examination or examinations and were included into the list of candidates to become judges would be somehow rated, their priority or different lists would be drawn, etc. which would be binding on the President of the Republic when he would be applying to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice concerning the appointment of judges. It also needs to be emphasised that the President of the Republic may choose persons, concerning the appointment of whom as judges he applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, only from those who have passed the examination or examinations and are included into the list of candidates to become judges, or only from other persons who may hold the office of a judges without examinations, if it is constitutionally grounded.

21. It should also be emphasised that even though the dominant principle of formation of the corps of judges of courts of higher level is the principle of professional career of judges (when the judges are promoted after they have been released from previous office and appointed as judges of courts of higher level), under the Constitution, it is not permitted to establish any such legal regulation whereby only judges would be able to become judges of courts of higher level. Establishment of such legal regulation and treating the principle of professional career of judges unreservedly would create preconditions for the system of courts to become too close, to become subjected to a routine, etc.

22. The concept of the professional career of judges also includes such cases when a judge is appointed as the President of a certain court, as the Chairperson of a division of any court, etc. If judges were appointed as the said Presidents of courts, Chairpersons of the divisions of courts or had to hold any other administrative offices for a certain term established by law, after the term has expired they must be released from office and, therefore, as well as when appointing them to that office, a corresponding individual act on the application of law must be adopted. The powers of the Presidents of courts, the Chairpersons of the divisions of courts and other judges who hold administrative offices in courts may not be prolonged by law, or by any other legal act establishing general norms either —in general such powers may not be prolonged as after the term of powers has expired, they are discontinued (an individual act on the application of law must be adopted concerning that), and then, according to the procedure established by law, it must be anew decided whether the same judge (if the laws provide for such a possibility) or another person has to be appointed as the President of that court, the Chairperson of a division of court, etc.

23. As, under the Constitution, only the President of the Republic may apply to the special institution of judges provided for by law specified in its Paragraph 5 of Article 112, he, before applying for the said advice, after he has made use of the possibilities established by law (inter alia, after he has demanded the information from corresponding state institutions (officials)), must elucidate and assess all the significant circumstances, inter alia, the fact whether the person who is proposed to be appointed as a judge, or the judge proposed to be transferred or promoted meets the requirements established for a judge (as well as for a judge of court of that system of courts or of the same level court), whether he has the qualification necessary for corresponding work, whether he is of impeccable reputation and whether there are no other circumstances due to which the person may not be appointed as a judge, or promoted and transferred (or appointed namely as a judge of the court specified by the President of the Republic, promoted appointing namely to that court, transferred namely to that court).

24. Under Article 85 of the Constitution, the President of the Republic, implementing the powers vested in him, shall issue acts-decrees. The constitutional powers of the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice concerning the appointment, promotion, transfer of judges or their release from office are implemented by issuing a corresponding decree of the President of the Republic. In such decree of the President of the Republic, also the term during which the corresponding advice must be received may be specified. If such term is specified in the corresponding decree of the President of the Republic, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution must observe this term.

25. As it has been mentioned, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is the balance to the President of the Republic—a political institution of state power—in the area of the formation of the corps of judges. This implies that the activity of this special institution of judges must be transparent, so that neither the President of the Republic, nor the society would have reasoned doubts regarding the formed corps of judges, as then people’s trust in law and the legal system of the state would in general decrease; thus, the advice of the said special institution of judges to the President of the Republic must be rationally argued and the reasons due to which it is advised to appoint a certain person as a judge, promote, transfer a judge or release him from office or not to appoint a person as a judge, not to promote, not to transfer a judge and not to release a judge from office (and if a justice of the Supreme Court or a judge of the Court of Appeal is appointed, promoted, transferred or released from office—to advise to submit his candidature for the Seimas or not to submit) must be set forth clearly. No advice (or other decisions) of the said special institution of judges may be based on assumptions, subjective prejudice or opinions of members of the said special institution of judges, it is necessary to ground such advice only upon the established (elucidated) facts after one has assessed the professional preparation and such personal features, other circumstances which determine their suitability or unsuitability for this activity (judge’s office in a certain court) of the corresponding persons. In this context, it should be noted that taking account of the fact that people’s trust in law and the legal system of the state virtually depend on the activity and decisions of the said special institution of judges, the legislature, while regulating the relations linked to the activity of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, may also establish such legal regulation that if the said special institution of judges irresponsibly implemented the powers established to it by the Constitution, its composition could be changed in essence; the establishment of such legal regulation imply that the procedure of settling disputes that may arise due to the corresponding decisions must also be established; while establishing the said legal regulation, the legislature must heed the Constitution.

26. Taking account of the purpose, the constitutional status and an exclusive role in the procedure of formation of the corps of judges of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, it needs to be held that certain requirements stem from the Constitution concerning the activity of this state institution and the organisation of its work.

For instance, before advising the President of the Republic on the appointment, promotion, transfer or release from office of a judge of a certain court of general jurisdiction or the specialised court established under Paragraph 2 of Article 111 of the Constitution, the said special institution of judges has a duty to elucidate and assess all the significant circumstances, inter alia, the fact whether the person who is proposed to be appointed as a judge, or a judge proposed to be transferred or promoted meets the requirements established to the judge (as well as to a judge of court of that system of courts or of the same level court), whether he has the qualification necessary for corresponding work, whether he is of impeccable reputation and whether there are no other circumstances due to which a person may not be appointed as a judge, promoted, transferred (or appointed namely as a judge of the court specified by the President of the Republic, or promoted namely to that court, or transferred namely to that court). The legislature has a duty to establish such legal regulation that the said special institution of judges would have powers to receive all the necessary information from state and municipal institutions (officials thereof) which would allow elucidating and assessing all the significant circumstances. The responsibility for the corresponding advice to the President of the Republic falls namely on the said special institution of judges to which the President of the Republic applied for the corresponding advice. The fact that, as it has been held in this ruling of the Constitutional Court, the President of the Republic, before applying to this special institution of judges for advice, must make use of the possibilities established by law and elucidate and assess all the significant circumstances, does not relieve the said special institution of judges from this duty and responsibility.

It is clear that the members of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution may elucidate and assess all the significant circumstances, inter alia, the fact, whether the person who is proposed to be appointed as a judge, or the judge proposed to be transferred or promoted meets the requirements established to the judge (as well as to a judge of court of that system of courts or of the same level court), whether he has the qualification necessary for corresponding work, whether he is of impeccable reputation and whether there are no other circumstances due to which the person may not be appointed as a judge, promoted, transferred (or appointed namely as a judge of the court specified by the President of the Republic, or promoted namely to that court, or transferred namely to that court) only when they receive in advance all the information necessary in order to consider a corresponding question, have a possibility of investigating it attentively, to demand additional information if necessary, etc. The work of the said special institution of judges may not be organised so that certain information concerning the considered question would be provided not in time and not in advance but only during the meeting of this special institution of judges, as well as that certain information concerning the considered question would be provided not to all members of this special institution of judges but only to some of them (selectively), for example, only to those members of this special institution of judges, who participate in that meeting. In this context, particularly taking account of the fact that, under the Constitution, the President of the Republic must receive an advice namely from the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, as a collegial state institution, and not from a part of it (i.e. a group of judges) concerning the appointment, promotion, transfer of a judge or his release from office, it should be noted that, in general, it would not be possible to consider the activity of the said special institution of judges, which, as it has been held in this ruling of the Constitutional Court, is a state institution provided for in the Constitution and not a derivative working on the public basis, as fully conforming to its constitutional purpose, if quite a number of its members did not participate in the meetings. It should also be noted that the work of the said special institution of judges must be organised so that voting on every advice to the President of the Republic during the meeting would take place, that after the voting is over, every member of this special institution of judges would know how every other member of this special institution of judges voted, that the results of the voting would not raise any doubts on their reliability. Failure to heed the said provisions would mean that one in essence deviates from the requirements of due process of law, which are binding in a state under the rule of law.

It should be particularly emphasised that the purpose, the constitutional status, the exclusive role in the procedure of formation of the corps of judges and the requirement of transparency of the activity of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution imply the publicity of the activity of this special institution of judges. The fact that the activity of the said special institution of judges may not be non-public means that, in addition to other things, the society (as well as the legal community) must be informed about all the questions concerning the appointment, promotion, transfer of a judge or his release from office considered in this special institution of judges in advance (it should be publicly announced). It has been held in this ruling of the Constitutional Court that the advices of the said special institution of judges to the President of the Republic must be rationally argued and the reasons due to which it is advised to appoint a certain person as a judge, to promote, transfer a judge or release him from office or it is advised not to appoint the person as a judge, not to promote, not to transfer and not to release the judge from office (and if a justice of the Supreme Court or a judge of the Court of Appeal is appointed, promoted, transferred or released from office—to advise to submit his candidature for the Seimas or not to submit it) must be set forth clearly. These arguments and reasons must be set down clearly. The society must be informed about the adopted decisions (advices to the President of the Republic). It should also be emphasised that when the President of the Republic applies for advice, each member of the said special institution of judges must declare his position on each question clearly and unambiguously.

27. Only the following powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution are explicitly entrenched in the Constitution (Paragraph 5 of Article 112 thereof): when the President of the Republic applies to it, it must advise him on the appointment, promotion, transfer of judges or their release from office, i.e. (as it was held in the Constitutional Court’s ruling of 21 December 1999), “concerning all the questions of appointment of judges, those of their professional career, as well as those of their release from office”, save (as it was held in the Constitutional Court’s ruling of 2 June 2005 and this ruling of the Constitutional Court) the exceptions which stem from the Constitution itself (of which there are very few). It should be emphasised that no other institution, nor official, nor any other person may implement these powers; nor may the said powers be transferred to anybody by the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution itself. If it were so and also if the legislature restricted the powers explicitly assigned to such special institution of judges in the Constitution, not only Paragraph 5 of Article 112 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution, under which the scope of power shall be limited by the Constitution, as well as the constitutional principle of a state under the rule of law, would be violated.

28. It should be emphasised that the construction of the meaning of the formula “a special institution of judges shall advise” of Paragraph 5 of Article 112 of the Constitution may not be grounded only on the verbal and literal construction of the notions used therein; this formula should be construed by taking account of the procedure of formation of the corps of judges entrenched in various articles (paragraphs thereof) of the Constitution, under which different powers are established for state power institutions and other institutions which participate in the formation of the corps of judges: the Seimas or the President of the Republic—political institutions—appoint judges and release them from their office, while the institution of the Judiciary, i.e. an autonomous and self-governing institution of independent state power, which, as the judicial power in general, is not political but only professional, gives advice to the President of the Republic on the appointment, promotion, transfer of judges or their release from office.

Thus, the formula “a special institution of judges shall advise” of Paragraph 5 of Article 112 of the Constitution means that, firstly, the said state institution must be composed for the purpose specified in this paragraph—to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office, secondly, this state institution must be composed only of judges. It should be held that, under the Constitution, not only no other institution, nor official, nor any other person may have the powers to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office, but also the institution specified in Paragraph 5 of Article 112 of the Constitution itself may be composed not of any other persons (members), but only of judges; otherwise, i.e. if this institution was composed not of judges or not only of judges, the constitutional concept (that during the formation of the corps of judges, the said special institution of judges is the balance to the President of the Republic—political institution) of the state institution—special institution of judges entrenched in this paragraph—would be disregarded; under the Constitution, such institution could not have the powers specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office. Only the institution which is formed on the professional basis, i.e. special institution of judges may properly assess whether the professional qualification of the person is such that he may be appointed as a judge, whether the person who already is a judge may be promoted, etc. Only the institution formed on the professional basis, i.e. a special institution of judges, may be a balance to the President of the Republic—to the subject of the executive power and as well as a political institution—in the formation of the corps of judges. Only such institution may ensure the independence of judges and courts, inter alia, in the aspect that the judges of all courts with no exception would be protected from the interference of the state power and government institutions, members of the Seimas and other officials, political parties, political and public organisations in the activity of a judge or court (as mentioned before, such interference is expressis verbis prohibited by Paragraph 1 of Article 114 of the Constitution). The formula “a special institution of judges shall advise” may not be construed expansively, that it, purportedly, does not prohibit the establishment of also such a legal regulation whereby it would be possible to include not only judges to this institution of judges, because such expansive construction of the constitutional notion “a special institution of judges shall advise” and the legal regulation based on it would create preconditions for disregarding the principle of independence of courts (which also includes self-governance of the judicial power) entrenched in the Constitution, inter alia, in the aspect that the President of the Republic would be advised on the appointment, promotion, transfer of judges or their release from office by an institution, which would be composed not only of judges but also of other persons (even politicians), which would be unable to assess from the professional point of view, whether the persons aspiring to become judges meet the requirements established to a judge, inter alia, whether such person has a professional qualification necessary for the office of a judge, whether the judge has a sufficient professional qualification in order to be promoted, etc. By such legal regulation, when the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution would be composed not only of judges but also other persons, not only the constitutional concept of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution in which it is prescribed that the scope of power shall be limited by the Constitution, as well as the constitutional principle of a state under the rule of law, would be disregarded.

29. The formula “a special institution of judges provided for by law” of Paragraph 5 of Article 112 of the Constitution means that the legislature enjoys broad discretion to regulate the formation, powers and activity (of course, heeding the Constitution, inter alia, the constitutional concept of the said special institution of judges) of this state institution—the special institution of judges provided for in this paragraph in one or another way. In this context, it should be noted that in its ruling of 28 March 2006, the Constitutional Court held: “In Paragraph 4 of Article 111 of the Constitution it is prescribed that the formation and competence of courts shall be established by the Law on Courts. Thus, the Constitution not only obliges the legislature to establish by law the establishment and competence of all the courts of the Republic of Lithuania (thus, also the status, formation, execution of powers (activity) and the guarantees for the courts of general jurisdiction, the status of the judges of these courts, etc.) specified in Paragraph 1 of Article 111 of the Constitution, but also expressis verbis consolidates the title of this law—the Law on Courts. It should also be noted that such constitutional legal regulation does not mean in itself that certain relations related to the said relations may not be regulated by means of other laws as well.”

In the constitutional justice case at issue, it should be emphasised that, under the Constitution, the formation, powers and activity of the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution which advises the President of the Republic on the appointment, promotion, transfer of judges or their release from office must be regulated not by any, but namely by the Law on Courts.

30. In itself, the fact that only the powers of the special institution of judges provided for by law specified in this paragraph to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office when he applies to it, are explicitly entrenched in the Constitution (Paragraph 5 of Article 112 thereof) does not mean that the said special institution of judges may have only these powers explicitly specified in Paragraph 5 of Article 112 of the Constitution and may not have other powers established to it by the legislature in the Law on Courts.

30.1. In this context, it should be noted that the constitutional powers of the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution are related to the participation of the judicial power, as a state power formed on the professional basis, and certain members of the corps of judges which, under the procedure established by law, were appointed or elected to the said special institution of judges, who implement the judicial power, in adoption of decisions on the career of judges. This implies the right of the legislature also to establish such powers of the said special institution of judges which are not expressis verbis established in the Constitution (Paragraph 5 of Article 112 thereof), but which arise from the constitutional powers of this special institution of judges, related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office, i.e. the powers related to the participation of the judicial power, as the state power formed on the professional basis, in adoption of decisions on the career of judges as well as with ensuring the opportunities of persons to aspire the career of a judge. Thus, the Constitution does not prohibit stipulating by law that this special institution of judges has the powers to initiate disciplinary actions against judges, the powers to appoint members of the examination commission of judges, etc. (the Constitutional Court’s ruling of 21 December 1999).

30.2. It should also be noted that, as mentioned before, the fully-fledgedness and independence of the judicial power pre-supposes its self-regulation and self-governance, which includes, inter alia, the organisation of the work of courts and the activities of the professional corps of judges. It has been mentioned that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution is an important element of self-governance of the Judiciary, as an independent state power; it is not permitted that this institution be not formed.

On the other hand, it is clear from the official constitutional doctrine of the judicial power formed in the previous constitutional justice cases of the Constitutional Court that the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution is not the only element of self-governance of the Judiciary, as an independent state power. Under the Constitution, the legislature, while heeding the constitutional principle of independence of the judge and courts and other provisions of the Constitution, has the powers to establish by law also other self-governance institutions of the judiciary, to establish the procedure of their formation, powers, etc. Moreover, while seeking to ensure the efficiency of self-governance of the judiciary and taking account of the fact that, as it has been held in this ruling of the Constitutional Court, under the Constitution, the self-governing judiciary may not be too centralised, and some other aforesaid institutions of the judicial power even must be formed: first of all, the meeting of judges (or the representatives thereof) provided for by law must be democratically convened, without which the self-governance of the Judiciary as a fully-fledged and independent state power is in general impossible. While regulating the relations linked to the formation of such institutions, the legislature enjoys broad discretion.

However, it needs to be noted that if the legislature chose such model of self-governance of the judiciary that along with the democratically convened meeting of judges (or representatives thereof) provided for by law, there would be only one self-governance institution of judges implementing, inter alia, the powers established in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office, and the legal (inter alia, procedural) mechanisms prohibiting the centralisation of the self-governing judiciary too much, it would not mean in itself that one would deviate from the concept of the Judiciary as independent and self-governing state power entrenched in the Constitution.

30.3. It should be noted that after the legislature has entrenched various self-governance institutions of the Judiciary, as an independent state power, by the Law on Courts (i.e. after he has chosen such self-governance model of the judiciary, under which there are several mentioned institutions), he (particularly taking account of the necessity to ensure the trust of society in the judicial power, law, and the legal system of the state) may also establish by law such legal regulation that the said other self-governance institutions of courts would include not only judges but also other persons. In itself, this should not be regarded as denial of self-governance, independence and fully-fledgedness of the judicial power. However, also in such case, judges must form the absolute majority of the members of such self-governance institutions of the Judiciary, as an independent state power, moreover, the heads (persons holding the chairmanship) of such institutions may also be only judges.

In the context of the constitutional justice case at issue, it should be particularly emphasised that if the legal regulation was established by law that certain self-governance institutions of the judiciary included not only judges but also other persons, under the Constitution, such institutions would be unable to implement the powers specified in Paragraph 5 of Article 112 of the Constitution, i.e. to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office, since Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution and the principle of a state under the rule of law would be violated. As it has been mentioned in this ruling of the Constitutional Court, the said powers only belong to the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution, i.e. such institution, which, under the Constitution, is composed only of judges (and which is first of all formed for the purpose specified in this paragraph).

31. In its ruling of 21 December 1999, the Constitutional Court held that the powers of the President of the Republic in the sphere of formation of the judiciary entrenched in the then Item 11 of Article 84 of the Constitution are an important element of the constitutional status of the Head of State, that any change or restriction of the powers of the President of the Republic in this area, 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. It should be noted that also any change or restriction of the powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic on the appointment, promotion, transfer of judges of all courts or their release from office would mean a change of the purpose of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution which arises from the Constitution itself.

32. It has been mentioned that, under the Constitution, the legislature has the powers to establish the procedure for the formation of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution. While establishing such procedure, the legislature may not disregard, inter alia, the circumstance that no official of the judicial power may be treated as the head of the whole judicial power or the representative thereof in the relations with other state powers and that under the Constitution, self-governing judicial power may not be too centralised in general. The independence of the judge entrenched in the Constitution implies the equal legal status of all judges while administering justice: no different guarantees of independence of the judge when they administer justice (decide cases) may be established; while implementing justice, no judge is nor may be subordinate to any other judge or to the President of any court (inter alia, the court where he works, as well as a court of higher level or instance). It is also necessary to pay heed to the circumstance that the self-governance and equal legal status of judges of the Judiciary, as an independent state power, imply, inter alia, the fact that also in self-governance institutions all judges have equal legal status, thus, also in self-governance institutions of judicial power they are equal and not subordinate to any other judge (nor to a judge or the President of a court of a higher level or instance). Thus, in self-governance institutions of the judicial power no judge may have more rights than any other judge. Thus, under the Constitution, the legislature may not entrench any such legal regulation that a certain judge could become the head of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution ex officio (by virtue of his office). It should be held that the Constitution tolerates only such election procedure of the head (the person holding chairmanship) of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution when the head (a person holding chairmanship) of this special institution of judges is elected by the members of this institution themselves or at the democratically convened meeting of judges (or representatives thereof) (which may also elect members of this special institution of judges) provided for by law. A different legal regulation, i.e. such that the head of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution is ex officio a certain judge (the President of a certain court) would not be in line with, inter alia, the principle of self-governance of the Judiciary as one of the state powers entrenched in the Constitution, as well as with the constitutional principle of a state under the rule of law.

In this context, it should be noted that also the rotational heading (chairmanship) of the said special institution of judges would be in line with the principle of self-governance of the Judiciary as one of the state powers entrenched in the Constitution and decentralisation of the self-governing judicial power.

33. The possibility of certain judges ex officio to be members of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution should be assessed a bit differently.

The said constitutional imperatives (decentralisation of the self-governing judicial power, independence of the judge, the equal status of all judges who administer justice, non-subordination of the judge to any other judge or President of any other court while administering justice, etc.) imply a democratic procedure for the formation of this special institution of judges. Thus, under the Constitution, the members of this special institution of judges, at least the absolute majority of them, must be democratically elected by the judges (representatives thereof) themselves; the procedure for the election must be such that it must be organised and executed so that there would be no preconditions created to doubt the democracy of this election, inter alia, the fact whether during an election of the said special institution of judges some judges were not treated unequally to others, etc.

It also needs to be noted that also the legal regulation that some judges (a comparatively small part of the members thereof), namely the Presidents of the Supreme Court of Lithuania, Court of Appeal of Lithuania as well as of specialised courts established under Paragraph 2 of Article 111 of the Constitution would ex officio become members of the said special institution of judges would not be in conflict with the Constitution. Neither would the legal regulation that the members of the said special institution of judges would be the judges, elected by a rather large social organisation of judges which unites judges of courts of the Republic of Lithuania, be in conflict with the Constitution. However, it should be emphasised that such judges would compose a comparatively small part of the members of the said special institution of judges. In this case, the procedure for the election must be such and it must be organised so that no preconditions were created to doubt the democracy of this election. The legal regulation that a comparatively small part of the members of this special institution of judges would be appointed by the President of the Republic and/or the Minister of Justice would not be in conflict with the Constitution, either (the Constitutional Court’s ruling of 21 December 1999).

In this context, it should be emphasised that the fact that some members of the special institution of judges may be appointed by the President of the Republic and/or the Minister of Justice may in no way be interpreted as these judges being the representatives or proxies of the President of the Republic or of the Minister of Justice in the indicated special institution of judges: under the Constitution, no legal regulation may be established so that such judges, would in some way, have to give an account for their activities in the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution, to the President of the Republic and/or Minister of Justice so that the President of the Republic and/or the Minister of Justice could give them any assignments, orders, etc. If the Law on Courts established such legal regulation that the President of the Republic and/or the Minister of Justice appoints some members of the specified special institution of judges, the said judges, after they have become the members of this special institution of judges not in the way of election, but by the said appointment, must still remain absolutely independent from the President of the Republic and/or the Minister of Justice, who appointed them. A different legal regulation, i.e. such that the judges who became members of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution not by way of the election, but they were appointed by the President of the Republic and/or the Minister of Justice, would be treated as representatives or proxies of these state officials in the specified special institution of judges, would be incompatible with, inter alia, the principle of self-governance of the Judiciary as one of the state powers entrenched in the Constitution, as well as with the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

34. The powers of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution, which is indicated in this paragraph, imply such procedure for the formation of this special institution of judges so that judges of courts of general jurisdiction of various levels and of specialised courts established under Paragraph 2 of Article 111 of the Constitution (at present—administrative courts) would be its members. It would be ensured by such legal regulation that a certain number of positions in the specified special institution of judges would be provided for to every level of courts of general jurisdiction and the specialised courts established under Paragraph 2 of Article 111 of the Constitution (at present—administrative courts) and that the corresponding members of this special institution of judges (heeding the number established for that level of courts) would be elected by the judges of namely that level of court (courts).

The fact that the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution has constitutional powers to advise the President of the Republic, inter alia, on the promotion of judges (as well as on the appointment, transfer or release from office) means that this special institution of judges also has the powers to assess the qualification of judges. It has been mentioned that the advice to the President of the Republic must be given only after the professional preparation of the corresponding persons have been assessed. Whether the judges of courts of lower level have such qualification and are so professionally prepared that they could be promoted (inter alia, appointed as judges of courts of higher level) may be best decided by judges (undoubtedly, not only them) of namely the courts that are the supreme instance of appeal and the supreme instance of cassation. Thus, such legal regulation would be constitutionally grounded, whereby such number of positions would be established in the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution for judges of every level of courts of general jurisdiction, as well as for judges of specialised courts established under Paragraph 2 of Article 111 of the Constitution (at present—administrative courts) that the judges of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and of the highest instances of specialised courts established under Paragraph 2 of Article 111 of the Constitution (at present, in the system of administrative courts—of the Supreme Administrative Court of Lithuania) would comprise the majority of the members of this special institution of judges.

35. It has been mentioned that the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution must be composed only of judges. The constitutional status of this special institution of judges implies that certain high requirements may and must be established to its members: only the judges who have high qualification, who are sufficiently experienced in their work as a judge as well as who earned authority in the professional community of judges may be its members. It has been held in this ruling of the Constitutional Court that the procedure for the election of the said special institution of judges must be such that the said procedure must be arranged and executed so that there would be no preconditions created to doubt the democracy of this election.

36. Under the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), the Council of Courts shall be the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution. It is established in Paragraph 1 (wording of 24 January 2002) of Article 119 of the Law on Courts that the Council of Courts shall be an executive body of the self-governance of courts ensuring independence of courts and judges.

Under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts, the Council of Courts shall be composed of 24 members, namely: (1) by virtue of their office (ex officio)—the President of the Supreme Court, the President of the Court of Appeal, the President of the Supreme Administrative Court, an authorised representative of the President of the Republic, an authorised representative of the Seimas, the President or Vice President of the Legal Affairs Committee of the Seimas, the President or Vice President of the Committee of Budget and Finances of the Seimas, the Minister of Justice or the Vice Minister authorised by him, the Minister of Finance or the Vice Minister of Finance authorised by him (Item 1); (2) judges elected by the General Meeting of Judges (whose candidatures are nominated to the General Meeting of Judges by the representatives of the corresponding courts): one from the Supreme Court, one from the Court of Appeal, one from the Supreme Administrative Court, one from each of the five regional courts, one from each district court within the territory of each regional court, and one from all regional administrative courts (Item 2); (3) the judge elected by the largest public organisation of judges (Item 3).

It is also established in the Law on Courts that the President of the Supreme Court shall be, by virtue of his office, the President of the Council of Judges (Paragraph 5 (wording of 24 January 2002) of Article 119).

Thus, in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) the legal regulation is established whereby the Council of Courts is composed of judges, as well as of persons, who are not judges. Under this law, some of the judges enter to the Council of Courts by virtue of their office (ex officio), while others are elected. The persons who are not judges become members of the Council of Court in different ways as well: some of them—ex officio, others—when they are appointed to the Council of Courts by the subjects who have certain powers and are specified in the Law on Courts. It was also mentioned that, under the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), the President of the Supreme Court shall be the President of the Council of Judges.

37. It has been held in this ruling of the Constitutional Court that by such legal regulation, when the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution would be composed not only of judges but also other persons, not only the constitutional concept of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution in which it is prescribed that the scope of power shall be limited by the Constitution, as well as the constitutional principle of a state under the rule of law, would be disregarded.

Upon establishment of the legal regulation that the Council of Courts, which, under this law (wording of 24 January 2002 with subsequent amendments and supplements) has the powers to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office, i.e. which acts as the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution, is composed not only of judges but also other persons was established in Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts, Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law are disregarded.

38. Taking account of the arguments set forth, the conclusion should be drawn that to the extent that it prescribes that not only judges but also other persons compose the Council of Courts, Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

39. It has been held in this ruling of the Constitutional Court that such legal regulation that the head of the special institution of judges established by law and specified in Paragraph 5 of Article 112 of the Constitution is ex officio a certain judge (the President of a certain court) is not in line with the principle of self-governance of the Judiciary as one of the state powers entrenched in the Constitution, with the constitutional principle of a state under the rule of law and with the provision of Paragraph 2 of Article 2 of the Constitution that the scope of power shall be limited by the Constitution which, inter alia, prohibits establishing more powers to any official than is allowed by the Constitution.

After the provision that the President of the Supreme Court shall be, by virtue of his office, the President of the Council of Judges was entrenched in Paragraph 5 (wording of 24 January 2002) of Article 119 of the Law on Courts, Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law are violated.

40. Taking account of the arguments set forth, the conclusion should be drawn that the provision “the President of the Supreme Court shall be, by virtue of his office, the President of the Council of Judges” of Paragraph 5 (wording of 24 January 2002) of Article 119 of the Law on Courts is in conflict with Paragraph 2 of Article 5 of the Constitution and with the constitutional principle of a state under the rule of law.

41. After it has been held that to the extent that not only judges but also other persons compose the Council of Courts, Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law, it should also be held that the Council of Courts, composed under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts, cannot have such powers which, under Paragraph 5 of Article 112 of the Constitution, belong to the special institution of judges which is provided for by law specified in Paragraph 5 of Article 112 of the Constitution, i.e. it cannot have powers to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office.

Additionally, it should be mentioned that the thus composed Council of Courts cannot have also such powers, which arise from the constitutional powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution and which are related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office, i.e. such other powers, related to the participation of the judicial power, as the state power formed on the professional basis, while adopting decisions on the career of judges as well as with ensuring the possibilities of persons to seek the career of a judge. The corresponding legal regulation, entrenching such other powers is not the matter of investigation in the constitutional justice case at issue.

42. The following powers of the Council of Courts related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office are established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements):

the President of the Republic shall be advised on the appointment of a judge of a district court by the Council of Courts (Paragraph 2 (wording of 24 January 2002) of Article 56);

the President of the Republic, upon receiving the conclusion of the Selection Commission on the candidates for judicial offices, shall submit the names of the specific nominees for consideration by the Council of Courts with a request for its advice within 30 days (Paragraph 3 (wording of 21 January 2003) of Article 56);

the issue of appointment of the nominees to a judicial vacancy at a district court shall be decided by the Council of Courts (Paragraph 4 (wording of 24 January 2002) of Article 56);

after consideration of the appointments to judicial offices, the Council of Courts shall advise the President of the Republic about an individual candidate. The Council of Courts may advise the President on two or more candidates to a judicial vacancy at a district court (Paragraph 5 (wording of 24 January 2002) of Article 56);

the President of the Council of Courts shall, within five days, communicate in writing to the President of the Republic the decision of the Council of Courts about its advice (Paragraph 6 (wording of 24 January 2002) of Article 56);

the President of the Republic shall be advised on the transfer of the judge of a local, regional administrative court or regional court by the Council of Courts (Paragraph 4 (wording of 24 January 2002) of Article 63);

the President of the Republic shall be advised on the appointment of the judge of a regional or regional administrative court by the Council of Courts (Paragraph 2 (wording of 24 January 2002) of Article 70);

the candidates to a judicial position of a regional court and of a regional administrative court shall be considered by the Council of Courts (Paragraph 3 (wording of 24 January 2002) of Article 70);

the President of the Republic shall be advised by the Council of Courts on the appointment of a judge of the Supreme Administrative Court (Paragraph 2 (wording of 24 January 2002) of Article 71);

the candidates to a judicial post of the Supreme Administrative Court shall be considered by the Council of Courts (Paragraph 3 (wording of 24 January 2002) of Article 71);

the President of the Republic shall be advised on the appointment of a judge of the Court of Appeal by the Council of Courts (Paragraph 2 (wording of 24 January 2002) of Article 72);

the candidates to a judicial position of the Court of Appeal shall be considered by the Council of Courts (Paragraph 3 (wording of 24 January 2002) of Article 72);

the President of the Republic shall be advised on the appointment of the President, the Vice President and the Chairperson of a division of a local court, a regional court and a regional administrative court by the Council of Courts (Paragraph 1 (wording of 24 January 2002) of Article 74);

the President of the Republic shall be advised on the appointment of the President and the Vice President of the Supreme Administrative Court by the Council of Courts (Paragraph 1 (wording of 24 January 2002) of Article 75);

the candidates to the positions of the President, the Vice President, and the Chairperson of a division of a local court, a regional administrative court, a regional court and the Supreme Administrative Court shall be considered by the Council of Courts (Paragraph 2 (wording of 21 January 2003) of Article 76);

the President of the Republic shall be advised on the appointment of the President of the Court of Appeal of Lithuania and of the Chairperson of a division of the Court of the Appeal of Lithuania by the Council of Courts (Paragraph 3 (wording of 24 January 2002) of Article 77);

the candidates to the positions of the President of the Court of Appeal of Lithuania and the Chairperson of a division this court shall be considered by the Council of Courts (Paragraph 2 (wording of 21 January 2003) of Article 78);

the President of the Republic shall be advised on the release of the President of the Court of Appeal of Lithuania, the Chairperson of a division of the Court of the Appeal of Lithuania, the President and the Vice President of the Supreme Administrative Court, the President and the Chairperson of a division of a regional court, the President and the Vice President of a regional administrative court and the President and the Vice President of a local court by the Council of Courts (Paragraph 7 (wording of 24 January 2002) of Article 81);

the President of the Republic shall be advised on the release of judges of a local court, a regional administrative court, a regional court, the Court of Appeal of Lithuania and the Supreme Administrative Court by the Council of Courts (Paragraph 7 (wording of 24 January 2002) of Article 90);

the President of the Republic shall be advised on the appointment, promotion, transfer of judges or their release from office by the Council of Courts (Item 3 (wording of 24 January 2002) of Article 120);

the President of the Republic shall be advised on the appointment of Presidents, Vice Presidents, Chairpersons of divisions of courts and their release from office by the Council of Courts (Item 4 (wording of 24 January 2002) of Article 120).

43. After it has been held that the Council of Courts, composed under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts, cannot have such powers which, under Paragraph 5 of Article 112 of the Constitution, belong to the special institution of judges which is provided for by law specified in Paragraph 5 of Article 112 of the Constitution (i.e. it cannot have the powers to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office), it needs to be held that such Council of Courts cannot have the powers that are established to it in Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of 21 January 2003) and Paragraphs 4, 5 and 6 (wording of 24 January 2002) of Article 56, Paragraph 4 (wording of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 72, Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph 1 (wording of 24 January 2002) of Article 75, Paragraph 1 (wording of 21 January 2003) of Article 76, Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph 1 (wording of 21 January 2003) of Article 78, Paragraph 7 (wording of 24 January 2002) of Article 81, Paragraph 7 (wording of 24 January 2002) of Article 90 and Items 3 and 4 (wording of 24 January 2002) of Article 120 of the Law on Courts.

44. Taking account of the arguments set forth, the conclusion should be drawn that also Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of 21 January 2003) and Paragraphs 4, 5 and 6 (wording of 24 January 2002) of Article 56, Paragraph 4 (wording of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 72, and Paragraph 1 (wording of 24 January 2002) of Article 74, to the extent that they prescribe that the Council of Courts advises the President of the Republic on the appointment of Presidents, Vice Presidents, Chairpersons of divisions of a local court, a regional court and a regional administrative court, Paragraph 1 (wording of 24 January 2002) of Article 75, to the extent that it prescribes that the Council of Courts advises the President of the Republic on the appointment of the President and the Vice President of the Supreme Administrative Court and Paragraph 2 (wording of 21 January 2003) of Article 76, Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph 2 (wording of 21 January 2003) of Article 78, Paragraph 7 (wording of 24 January 2002) of Article 81, Paragraph 7 (wording of 24 January 2002) of Article 90 and Items 3 and 4 (wording of 24 January 2002) of Article 120 of the Law on Courts are in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

45. It needs to be mentioned that not only the powers, which are related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office and which are a matter of investigation in the constitutional justice case at issue, but also certain other powers (inter alia, the powers, which arise from the constitutional powers of the special institution of judges, provided for by law specified in Paragraph 5 of Article 112 of the Constitution and which are related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office, i.e. such other powers, which are related to the participation of the judicial power, as the state power formed on the professional basis, while adopting decisions on the career of judges as well as with ensuring the possibilities of persons to seek the career of a judge) are established to the Council of Courts in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), which are not a matter of investigation in the constitutional justice case at issue.

Taking account of the fact that not only judges but also other persons compose the Council of Courts under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts and having held that Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts to the extent that the Council of Courts includes not only judges but also other persons is in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of a state under the rule of law, it needs also to be held that, under the Constitution, such Council of Courts may not have and implement the powers which only a self-governing judicial institution composed only of judges may have.

However, in the constitutional justice case at issue, one must pay attention to the fact that the Council of Courts composed under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts may not have nor implement all the powers or the powers of a certain paragraph, which are established in Item 15 (wording of 21 January 2003) of Article 120 of this law, under which, the Council of Courts shall consider and approve proposals for draft investment programmes and proposals for the draft budgets of local, regional and regional administrative courts and submit them to the Government, in Paragraph 2 (wording of 24 January 2002) of Article 127, under which, appropriation managers—the courts—shall submit their proposals for their draft budgets to the Council of Courts for consideration, which submits them for consideration to the Government and those established in Paragraph 2 (wording of 24 January 2002) of Article 128, under which, draft state investment programmes shall be approved by the Council of Courts (while the state investment programmes shall be managed by the Ministry of Justice).

46. In the constitutional justice case at issue, the Constitutional Court does not investigate whether the articles (paragraphs thereof) of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) entrenching most of the powers of the Council of Courts, namely the powers which are not directly related to advising the President of the Republic on the appointment, promotion, transfer of judges or their release from office, are not in conflict with the Constitution.

It should also be emphasised that the fact that the said other powers of the Council of Courts are not a matter of investigation in this constitutional justice case may not be treated as their “approval” and it may not be construed that due to the fact that in the constitutional justice case at issue the Constitutional Court did not recognise the corresponding articles (paragraphs thereof) of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) as being in conflict with the Constitution, in themselves those other powers of the Council of Courts allegedly are in compliance with the Constitution.

47. It is established in Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts that the candidates to a judicial office of the Supreme Court shall be selected and nominated to the President of the Republic by the President of the Supreme Court and that this nomination shall not be binding on the President of the Republic.

48. While deciding, whether Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is not in conflict with the Constitution, it should be emphasised that, under the Constitution, the Presidents of all levels of courts of general jurisdiction, as well as of specialised courts (at present—administrative courts) established under Paragraph 2 of Article 111 of the Constitution shall have no other powers, except such which are assigned to them as judges of the corresponding court who have to administer justice—to decide cases—as well as the powers arising from the Constitution and laws to organise the activity of the corresponding court, which are assigned to them as heads of institutions—corresponding courts. Inter alia, such powers of Presidents of courts of higher level as initiation of disciplinary cases (other cases of similar nature) for judges of courts of lower level, the Presidents thereof arise from the instance system of courts entrenched in the Constitution, the hierarchy thereof. However, the fact that in relations with other state institutions or other state officials, the President of any court of general jurisdiction, without any exception either for the Supreme Court, or specialised courts (at present—administrative courts) established under Paragraph 2 of Article 111 of the Constitution, would have the powers, which would determine the decisions adopted by other state institutions or officials thereof or on which the said decisions would essentially depend, does not stem from the Constitution.

49. The legal regulation established in Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts needs to be construed while taking account of the fact that the provisions entrenched in this paragraph compose a whole and cannot be separated from one another.

Attention should be paid to the fact that Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is set forth so that there are grounds to construe it in different ways, and also to construe it so that, purportedly, it prescribes that the President of the Republic selects the candidates to a judicial office of the Supreme Court only from the candidates nominated by the President of the Supreme Court, and if the candidate nominated by the President of the Supreme Court is not acceptable to the President of the Republic, such proposal of President of the Supreme Court is not binding on the President of the Republic only in the aspect that the President of the Republic may request the President of the Supreme Court to provide him with another candidate to the judicial office of the Supreme Court.

However (especially taking account of the fact that in Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts it is explicitly entrenched that the nomination of the President of the Supreme Court shall not be binding on the President of the Republic), the possibility of construing Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts in a different way, namely as prescribing that the President of the Supreme Court is only one of the subjects who have the right to nominate the candidate to a judicial office of the Supreme Court to the President of the Republic, is not completely denied. In construing Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts in such a way, it should be held that, under the said paragraph, the President of the Supreme Court has the duty to nominate a candidate to the vacated (or which is about to be vacating soon) judicial office of the Supreme Court to the President of the Republic and to do that as soon as possible, so that this vacancy would not be unoccupied or would be unoccupied for as short period of time as possible, but he has no right to thrust only his chosen candidate upon the President of the Republic.

Taking account of the links of the provisions of Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts, as well as of the provision of the official constitutional doctrine that the legislature has the right to establish what subjects nominate candidates to judicial offices to the President of the Republic formulated in the acts of the Constitutional Court (inter alia, in the Constitutional Court’s ruling of 21 December 1999), it should be held that the legal regulation established in Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts does not prevent the President of the Republic from selecting a candidate to a judicial office of the Supreme Court not only from the candidates nominated by the President of the Supreme Court, but also from those, who were not nominated by the President of the Supreme Court and who meet the requirements established in the law for the persons who may be appointed to judicial offices of the Supreme Court.

Only if the legal regulation established in Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is understood in this way, it may be held that the President of the Supreme Court, as a judge and head of this court, does not intervene in the constitutional powers of the President of the Republic by the established legal regulation.

Thus, the legal incorrectness of the formulas of Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is not in itself a sufficient basis to rule this paragraph to be in conflict with Paragraphs 2 and 5 of Article 112, Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law.

50. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts is not in conflict with Paragraphs 2 and 5 of Article 112, Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law.

51. It is established in Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts that the Chairperson of a division of the Supreme Court shall be appointed by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court from among the judges appointed to the Court.

52. While disclosing the content of Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts, it should be held that the legal regulation is entrenched therein, whereby only the President of the Supreme Court has the right to advise the President of the Republic, which of the appointed justices of the Supreme Court to appoint as the Chairperson of a division of the Supreme Court. In this context, it should be emphasised that neither Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts, nor other articles of this law prescribe that such advice of the President of the Supreme Court is not binding on the President of the Republic.

Thus, it needs to be held that in Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts, the legal regulation is established, according to which, if the President of the Supreme Court does not advice the President of the Republic on the candidate to an office of the Chairperson of a division of the Supreme Court, the President of the Republic may not submit the Seimas with the candidate for appointment to the office of the Chairperson of a division of the Supreme Court.

By such legal regulation, the powers of the President of the Supreme Court, as a justice of this court and the head of the institution, are groundlessly prolonged, the constitutional powers of the President of the Republic to form the corps of judges, upon the advice of the special institution of judges, provided for by law specified in Paragraph 5 of Article 112 of the Constitution, are restricted and the constitutional competence of this special institution of judges is interfered with.

53. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts is in conflict with Paragraph 5 of Article 2, Item 11 (under which, as mentioned before, the President of the Republic shall, inter alia, submit candidatures of the Supreme Court justices to the Seimas and, upon the appointment of all the Supreme Court justices, submit from among them to the Seimas the President of the Supreme Court) of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

54. In Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, it is prescribed that the Chairperson of a division of the Supreme Court shall be released by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court.

55. The provision of Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts that the President of the Supreme Court has the right to advise the President of the Republic on the release of the Chairperson of a division of the Supreme Court should be assessed by taking account of the fact that neither in Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, nor in other articles of this law it is prescribed that the absence of such advice of the President of the Supreme Court to the President of the Republic to release the Chairperson of a division of the Supreme Court from office is not binding on the President of the Republic.

Thus, it should be held that, in Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, the legal regulation is established, according to which, if the President of the Supreme Court does not advise the President of the Republic to release the Chairperson of a division of the Supreme Court from office, the President of the Republic may not submit that the Seimas release the Chairperson of a division of the Supreme Court from office.

By such legal regulation, the powers of the President of the Supreme Court, as a justice of this court and the head of the institution, are groundlessly prolonged, the constitutional powers of the President of the Republic to form the corps of judges, under the advice of the special institution of judges, provided for by law specified in Paragraph 5 of Article 112 of the Constitution, are restricted and the constitutional competence of this special institution of judges is interfered with.

56. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

57. In Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, it is prescribed that a justice of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and the proposal of the President of the Supreme Court.

58. In Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, the established legal regulation that the President of the Supreme Court has the right to propose the President of the Republic that a justice of the Supreme Court be released from office should be assessed by taking account of the fact that neither Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, nor other articles of this law prescribe that the absence of such advice of the President of the Supreme Court to the President of the Republic to release a justice of the Supreme Court from office is not binding on the President of the Republic.

Thus, it should be held that in Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, the legal regulation is established, according to which, if the President of the Supreme Court does not advise the President of the Republic to release a justice of the Supreme Court from office, the President of the Republic may not submit that the Seimas release the justice of the Supreme Court from office.

By such legal regulation, the powers of the President of the Supreme Court, as a justice of this court and the head of the institution, are groundlessly prolonged, the constitutional powers of the President of the Republic to form the corps of judges, under the advice of the special institution of judges, provided for by law specified in Paragraph 5 of Article 112 of the Constitution, are restricted and the constitutional competence of this special institution of judges is interfered with.

59. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

60. The powers of the President of the Supreme Court of Lithuania to participate in the procedure for appointment of the justices and Chairpersons of divisions of the Supreme Court and their release from office are entrenched not only in the Law on Courts, but also in the Statute of the Supreme Court of Lithuania, which was adopted by the Seimas as the Republic of Lithuania’s Law “The Statute of the Supreme Court of Lithuania” (hereinafter also referred to as the Statute of the Supreme Court of Lithuania) on 18 April 1995 and which came into force on 3 May 1995. The Statute of the Supreme Court of Lithuania has been amended and supplemented more than once.

61. In Paragraph 3 (wording of 18 April 1995) of Article 17 of the Statute of the Supreme Court of Lithuania, it is prescribed that the Chairpersons of divisions of the Supreme Court shall be appointed by the Seimas from the appointed judges upon the nomination of the President of the Supreme Court and the submission of the President of the Republic. This provision is related to Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11 of the Statute of the Supreme Court of Lithuania, under which, upon the assent of the Senate of the Supreme Court, the President of the Supreme Court proposes that the President of the Republic submit the appointed justices to the Seimas as candidates to the office of the Chairpersons of divisions of the Supreme Court. In Paragraph 4 (wording of 4 July 1996) of Article 17 of the Statute of the Supreme Court of Lithuania, it is prescribed that when the Chairperson of a division is released from office, the President of the Supreme Court shall nominate another candidate to the Senate of the Supreme Court for consideration, and if the Senate of the Supreme Court gives an assent, the candidate to the office of the Chairperson of the division shall be submitted to the President of the Republic.

62. It needs to be noted that neither in the specified articles of the Statute of the Supreme Court of Lithuania, nor elsewhere in this statute (wording of 18 April 1995 with subsequent amendments and supplements) it is prescribed that the proposals of the President of the Supreme Court to the President of the Republic on the appointment of the Chairpersons of divisions of the Supreme Court or their release from office are not binding on the President of the Republic. Thus, the legal regulation is established in Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11, Paragraph 3 (wording of 18 April 1995) and Paragraph 4 (wording of 4 July 1996) of Article 17 of the Statute of the Supreme Court of Lithuania that if the President of the Supreme Court does not present a corresponding nomination, the President of the Republic may not present that the Seimas appoint or release the Chairperson of a division of the Supreme Court from office.

By such legal regulation, the powers of the President of the Supreme Court, as a justice of this court and the head of the institution, are groundlessly prolonged, the constitutional powers of the President of the Republic to form the corps of judges, under the advice of the special institution of judges, provided for by law specified in Paragraph 5 of Article 112 of the Constitution, are restricted and the constitutional competence of this special institution of judges is interfered with.

63. It has been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 24 January 2002) of Article 79 of the Law on Courts, in which it is prescribed that the Chairperson of a division of the Supreme Court shall be appointed by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court from among the judges appointed to the Court is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

64. Having held so, the conclusion should be drawn that Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11, in Paragraph 3 (wording of 18 April 1995) and Paragraph 4 (wording of 4 July 1996) of Article 17 of the Statute of the Supreme Court of Lithuania are in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

65. It is established in Paragraph 1 (wording of 18 April 1995) of Article 17 of the Statute of the Supreme Court of Lithuania that the candidates to the judicial office of the Supreme Court are selected by the President of the Supreme Court.

66. It needs to be noted that neither in Paragraph 1 (wording of 18 April 1995) of Article 17 of the Statute of the Supreme Court of Lithuania, nor elsewhere in this statute (wording of 18 April 1995 with subsequent amendments and supplements) it is prescribed that the proposals of the President of the Supreme Court to the President of the Republic on the candidates to the judicial offices of the Supreme Court are not binding on the President of the Republic. Thus, in Paragraph 1 (wording of 18 April 1995) of Article 17 of the Statute of the Supreme Court of Lithuania the legal regulation is established, according to which, if the President of the Supreme Court does not give the President of the Republic a corresponding proposal, the President of the Republic may not submit that the Seimas appoint a justice of the Supreme Court.

By such legal regulation, the powers of the President of the Supreme Court, as a justice of this court and the head of the institution, are groundlessly prolonged, the constitutional powers of the President of the Republic to form the corps of judges, under the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, are restricted and the constitutional competence of this special institution of judges is interfered with.

67. It has been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 24 January 2002) of Article 73 of the Law on Courts, in which it is prescribed that the candidates to a judicial office of the Supreme Court shall be selected and nominated to the President of the Republic by the President of the Supreme Court and that this nomination shall not be binding on the President of the Republic, even though formed legally incorrectly, is not in conflict with Paragraph 5 of Article 112 and Paragraph 2 of Article 5 of the Constitution and the constitutional principle of the state under the rule of law only in the case, when it is construed by taking account of the fact that it explicitly consolidates that the advice of the President of the Supreme Court shall not be binding on the President of the Republic.

It has also been held that Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, in which it is prescribed that a justice of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and the proposal of the President of the Supreme Court is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

68. Having held so and taking account of the same arguments, the conclusion should be drawn that Paragraph 1 (wording of 18 April 1995) of Article 17 of the Statute of the Supreme Court of Lithuania is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

69. It is established in Paragraph 3 (wording of 18 April 1995) of Article 18 of the Statute of the Supreme Court of Lithuania that the justices of the Supreme Court and the Chairpersons of the divisions are released from office on the decision of the Seimas under the recommendation of the President of the Republic according to the proposal of the President of the Supreme Court.

70. It has been held in this ruling of the Constitutional Court that Paragraph 3 (wording of 24 January 2002) of Article 81 of the Law on Courts, in which it is prescribed that the Chairperson of a division of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and advice of the President of the Supreme Court and Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, in which it is prescribed that a justice of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and the proposal of the President of the Supreme Court are in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

It should also be held that Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11 of the Statute of the Supreme Court of Lithuania, under which, upon the assent of the Senate of the Supreme Court, the President of the Supreme Court nominates the appointed justices to the President of the Republic for the submission to the Seimas as candidates to the office of the Chairpersons of divisions of the Supreme Court, Paragraph 1 (wording of 18 April 1995) of Article 17 of this statute, in which it is prescribed that the candidates to the judicial offices of the Supreme Court shall be selected by the President of the Supreme Court, Paragraph 3 (wording of 18 April 1995) of this article, in which it is prescribed that the Chairpersons of divisions of the Supreme Court shall be appointed by the Seimas from the appointed judges upon the nomination of the President of the Supreme Court and the submission of the President of the Republic, Paragraph 4 (wording of 4 July 1996) of this article, in which it is prescribed that when the Chairperson of a division is released from office, the President of the Supreme Court shall nominate another candidate to the Senate of the Supreme Court for consideration, and if the Senate of the Supreme Court gives an assent, the candidate to the office of the Chairperson of the division shall be submitted to the President of the Republic are in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

71. Having held so and taking account of the same arguments, the conclusion should be drawn that Paragraph 3 (wording of 18 April 1995) of Article 18 of the Statute of the Supreme Court of Lithuania is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

72. In Paragraph 5 (wording of 24 January 2002) of Article 22 of the Law on Courts, it is prescribed that issues pertaining to the organisation and activities of the Supreme Court shall be established by this law and the Statute of the Supreme Court of Lithuania approved by law. It has been mentioned that the Statute of the Supreme Court of Lithuania was adopted by the Seimas as the Law “The Statute of the Supreme Court of Lithuania” on 18 April 1995 and came into force on 3 May 1995. Thus, the Statute of the Supreme Court of Lithuania, which is valid at present, was not adopted on the basis of the Law on Courts (wording of 24 January 2002), but on the basis of the Law on Courts of one of the previous wordings (17 June 1994); it has undergone some amendments and supplements.

It is established in the Preamble to the Statute of the Supreme Court of Lithuania that the Statute of the Supreme Court of Lithuania shall regulate the activity of the Supreme Court which is not regulated by any laws which are in effect.

It has been mentioned that under Paragraph 4 of Article 111 of the Constitution, the formation and competence of courts shall be established by the Law on Courts. It has been held in this ruling of the Constitutional Court that the Constitution not only obliges the legislature to establish by law the establishment and competence of all the courts of the Republic of Lithuania (thus, also the status, formation, execution of powers (activity) and the guarantees for courts of general jurisdiction, the status of the judges of these courts, etc.) specified in Paragraph 1 of Article 111 of the Constitution, but also expressis verbis consolidates the title of this law—the Law on Courts. It should also be noted that such constitutional legal regulation does not mean in itself that certain relations related to the said relations may not be regulated by means of other laws as well.

It needs to be emphasised that under Paragraph 4 of Article 111 of the Constitution, the relations of the formation, competence, legal status of the judges and other court functioning relations of all courts, thus, also of the Supreme Court of Lithuania, may and must be regulated not by any law, but precisely by the Law on Courts, they may not be regulated in, inter alia, any other legal act adopted (or approved) by law. In this context, it should be noted that the said relations may not be regulated in the Statute of the Supreme Court of Lithuania (with subsequent amendments and supplements), either, which was adopted by law by the Seimas on 18 April 1995.

It should be particularly emphasised that the Statute of the Supreme Court of Lithuania, which is in effect now (wording of 18 April 1995, with subsequent amendments and supplements) contains a number of provisions regulating the relations of formation of courts, the term of the judicial offices and other relations concerning the functioning of courts in a totally different way than in the Law on Courts which is in effect now, and even obviously in a different way than it is established in the Constitution. Thus, under Paragraph 2 (wording of 28 January 2003) of Article 57 of the Law on Courts, the term of powers of a justice of the Supreme Court is till he turns 65 (but may be prolonged till he turns 70), while under Paragraph 6 (wording of 4 July 1996) of Article 17 of the Statute of the Supreme Court of Lithuania—till he turns 70. It is established in Paragraph 2 (wording of 18 April 1995) of Article 2 of the Statute of the Supreme Court of Lithuania that the Office of the Prosecutor General operates under the Supreme Court, even though, under Paragraph 4 of Article 118 of the Constitution, the Office of the Prosecutor General is separated from the Supreme Court (as well as the whole system of prosecutor’s office is separated from the system of courts). There are also other provisions in the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements) which regulate certain relations in a totally different way than the Constitution or the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) do. And even though, as it was said, it is established in the Preamble to the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements) that the Statute of the Supreme Court of Lithuania regulates the activity of the Supreme Court which is not regulated by any other laws which are in effect, such legal regulation that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) and the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements), i.e. two laws, which establish the same and at the same time totally different legal regulation concerning the same relations, proves that the legal regulation on the said relations is neglected and non-compatible with the constitutional principle of a state under the rule of law, under which it is required, inter alia, that such legal regulation would be clear and non-contradictory and that one legal norm or provision does not deny the other. The legal regulation, when the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) and the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements) adopted by law establish the same and at the same time a totally different legal regulation concerning the same relations is incompatible with the constitutional principle of a state under the rule of law also because of the fact that when the Constitutional Court rules some articles (parts thereof) of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) to be in conflict with the Constitution, i.e. when certain provisions are eliminated from the legal system of Lithuania, the analogous, or, on the contrary, totally different provisions of the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements) regulating the same relations start to be applied, because, as mentioned before, it is established in the Preamble to the Statute of the Supreme Court of Lithuania that the Statute of the Supreme Court of Lithuania regulates the activity of the Supreme Court which is not regulated by means of the laws that are in effect.

The legal regulation established in the Statute of the Supreme Court of Lithuania (wording of 18 April 1995, with subsequent amendments and supplements), save the provisions thereof related to the provisions of the Law on Courts impugned by the petitioners, is not a matter of investigation in this constitutional justice case at issue, however, attention should be paid to the fact that such Statute of the Supreme Court of Lithuania, which is in effect now, i.e. a legal act regulating the relations of the formation of the Supreme Court, its competence, the status of justices, the social guarantees and other relations of similar nature and determining the position of the Office of the Prosecutor General in the system of state institutions, even though is adopted as a law passed by the Seimas, is not permissible in general under the Constitution. The Statute of the Supreme Court of Lithuania (should the Law on Courts continue to contain the provision of such a legal act) may not have any provisions (save provisions of regulatory nature), which would regulate the relations of organisation of the inner work of the Supreme Court, let alone any provisions which would compete with the Constitution.

Moreover, such legal act of regulatory nature should be approved not by the legislature, but by the Supreme Court itself, which, while doing so, must heed the Constitution, inter alia, the official constitutional doctrine formed in this ruling of the Constitutional Court and in other acts of the Constitutional Court.

III

On the compliance of Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts with Paragraph 2 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109 and Paragraph 5 of Article 112 of the Constitution and the constitutional principle of a state under the rule of law.

1. In Article 57 (wording of 28 January 2003) of the Law on Courts, it is established:

1. A person shall be appointed to a judicial office at a local court for the first time for a term of five years in order to assess whether the person qualifies for the office. A person may be appointed to hold a judicial office for a term of five years only once. The appointment of a person to a judicial office at a local court for a term of five years for the second time shall not be regarded as a reappointment if he discharged judicial duties after the first appointment for a term shorter than five years. Upon the expiry of the five year term, such a person may be appointed a judge of a local court, without a prior examination and selection, by the President of the Republic of Lithuania, for a term until he reaches the age of 65.

2. Judges of other courts shall, from the outset, be appointed for a term until they reach the age of 65.

3. When a judge of the Supreme Court of Lithuania, the Court of Appeal of Lithuania and the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court reaches the age of 65, his powers may be prolonged by the institution which appointed him until he reaches the age of 70. In such cases the judge wishing to have the prolongation of his powers shall apply to the President of the Republic. The issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as established in this Law.

4. Before the expiry of the terms of office specified in Paragraphs 1, 2 and 3 of this Article, the powers of a judge may be terminated only in cases of release or removal of a judge from office as established in the Constitution of the Republic of Lithuania and this Law.

5. If a judge’s term of powers expires while a case is still pending, he may continue in office to complete the hearing of the case or until the hearing is postponed.”

2. While deciding, whether Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is not in conflict with the Constitution, first of all, it is necessary to establish whether the institute of the prolongation of the powers of the judge entrenched in this paragraph is in line with the principle of independence of the judge which is entrenched, inter alia, in the Constitution, whether this institute does not create preconditions for influencing in any way, even indirectly, administration of justice and, thus, for violating the principle of independence of the judge.

3. One of the guarantees of the independence of the judge entrenched in the Constitution is the guarantee of term of his powers (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999 and 12 July 2001). Only an independent court, thus, only such, whose judges are guaranteed the inviolability of the term of their office, may be considered as one administering justice as required by the Constitution. The guarantee of the inviolability of the term of powers of the judge is also important because of the fact that a judge, whatever political forces are in power, must remain independent and not to conciliate to the possible change of political forces. The situations when a judge may be released from office as well as the basis for his release from office are entrenched in Article 115 of the Constitution (as well as Articles 74 and 116 of the Constitution, providing for the possibility of releasing the supreme justices from office under the procedure of impeachment). It needs to be emphasised that this list of the bases for the release of judges from office is a comprehensive (finite) one, it may not be amended, nor supplemented by law.

4. One of the situations established in the Constitution when a judge is released from office and one of the bases of the release of the judge from office is the fact that the term of powers of the judge expires or the judge reaches the pensionable age established by law (Item 2 of Article 115 of the Constitution).

5. The term of powers of judges is established in Article 57 of the Law on Courts: judges of the Supreme Court of Lithuania, the Court of Appeal of Lithuania, the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court shall be appointed for a term until they reach the age of 65 (Paragraph 2 (wording of 24 January 2002)); a person, who had been appointed to a judicial office at a local court for the first time, may, upon the expiration of that term of five years, be appointed to a judicial office at a local court for a term until he reaches the age of 65 (Paragraph 1 (wording of 24 January 2002)).

6. It should be noted that the principle of independence of judges entrenched in the Constitution implies only such legislative regulation of the term of powers of the judge that when appointing a judge, he would know the term of powers (until the time established by law or until he reaches the pensionable age established by law). Thus, the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion.

The legal regulation when the possibility of prolonging the term of powers of judges upon their expiration (irrespective of the term for which the powers of the judge are prolonged and of the level of court the powers of whose judge are prolonged) is provided may create preconditions for other persons to try to influence the judge directly or indirectly in order that he, when seeking prolongation of his powers, would make certain decisions in cases considered by him; such legal regulation should be regarded as enabling someone to induce the judge to consider cases and adopt decisions in them not only by obeying the law, as required by the Constitution (Paragraph 3 of Article 109), but also by heeding the fact how the decisions adopted in his considered cases will influence the possibility of prolonging his powers in the future. In other words, such legal regulation creates preconditions for a judge to adopt the decisions in cases considered by him, which would not correspond not the concept of justice of the judge himself, but the concept of justice of other persons.

Thus, the legal regulation, when the possibility is provided to prolong the powers of judges upon expiration of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of independence of the judge and courts entrenched in the Constitution, with Paragraph 2 of Article 109 of the Constitution, under which, while administering justice, judges and courts are independent, with Paragraph 3 of this article, in which it is prescribed that while considering cases, judges only obey the law, and the constitutional principle of a state under the rule of law.

It has been held in this ruling of the Constitutional Court that: the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions would be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; in every case on such prolongation of the powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if the powers of a justice of the Supreme Court are prolonged) a Seimas resolution must be passed; in every such case, the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the prolongation of powers is necessary; such advice of the said special institution of judges to prolong the powers of the judge also means its advice to release the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished; thus, the powers of the judge must be discontinued under the established procedure, when the corresponding legal fact to which the prolongation of the powers of a judge is related happens—the consideration of corresponding cases is finished; when this legal fact to which the prolongation of the powers of a judge is related happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the release of the judge from office when his powers have expired or when he has reached pensionable age established by law once again (as the corresponding advice has already been received).

7. It should also be mentioned that it is established in Paragraph 5 (wording of 24 January 2002) of Article 57 of the Law on Courts that if the judge’s term of powers expires while a case is still pending, his powers are prolonged till the consideration of the case is finished or its consideration is postponed. When account is taken of the fact that by such exceptional legal regulation one seeks to create preconditions for not slowing down the decision of the corresponding cases—administration of justice—and not to create preconditions for injuring the rights of persons and legitimate interests, not for violating other constitutional values, the said Paragraph 5 (wording of 24 January 2002) of Article 57 of the Law on Courts should be regarded as constitutionally reasoned.

8. It has been mentioned that under Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts, the powers of a justice of the Supreme Court of Lithuania, a judge of the Court of Appeal of Lithuania, the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court who reached the age of 65 may be prolonged till he reaches the age of 70; the term of powers of the judge of the specified courts may be prolonged by the institution that appointed the judge; the judge, wishing to have the prolongation of his term of powers, shall apply to the President of the Republic, while the issue in respect of the prolongation of the judge’s term of powers shall be decided in accordance with the procedure for the appointment of the judge of an appropriate court as established in the Law on Courts.

9. It has been held in this ruling of the Constitutional Court that the legal regulation, when the possibility is provided to prolong the powers of judges upon expiration of their term of powers, save the exceptions allowed by the Constitution itself, is incompatible with the principle of independence of the judge and courts entrenched in the Constitution, with Paragraph 2 of Article 109 of the Constitution, under which, while administering justice, judges and courts are independent, with Paragraph 3 of this article, in which it is prescribed that while considering cases, judges only obey the law and the constitutional principle of a state under the rule of law.

10. Having held so, the conclusion should be drawn that Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts, in which the possibility of prolonging the powers of a justice of the Supreme Court of Lithuania, a judge of the Court of Appeal of Lithuania, the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court who reached the age of 65 till he reaches the age of 70, is in conflict with Paragraphs 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

11. After having held that Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is in conflict with Paragraphs 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, in this constitutional justice case, the Constitutional Court will no longer investigate whether Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 29 and Paragraph 5 of Article 112 of the Constitution, which were specified by the group of members of the Seimas (which applied with the 19 February 2004 petition) and/or the Court of Appeal of Lithuania, the petitioners.

IV

On the compliance of Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 with Paragraph 2 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution, with the constitutional principle of a state under the rule of law, with Paragraph 1 (wording of 24 January 2002) of Article 45, the provision of Paragraph 3 of Article 57 (wording of 28 January 2003) that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, and with Paragraph 2 (wording of 24 January 2002) of Article 70 of the Law on Courts.

1. Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office when his powers expired by the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 (Article 1); this Decree of the President came into force on 12 February 2003 (Article 2).

2. It is clear from the material of the civil case considered by the Court of Appeal of Lithuania, wherein the ruling was adopted containing the petition for the Constitutional Court requesting an investigation into whether, inter alia, the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, by which Jurgis Tautkevičius, a judge of the Panevėžys Regional Court, was released from office when his powers expired, is not in conflict with Paragraph 1 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, and Paragraph 5 of Article 112 of the Constitution, with the constitutional principle of a state under the rule of law, as well as with Paragraph 1 of Article 45, the provision of Paragraph 3 of Article 57 that the issue in respect of the prolongation of the judge’s powers shall be decided in accordance with the procedure for the appointment of a judge of an appropriate court as laid down in this law, and with Paragraph 2 of Article 70 of the Law on Courts, that:

the President of the Republic appointed Jurgis Tautkevičius to a judicial office of the Šakiai District Local Court by the Decree (No. 160) “On the Appointment of Judges of Local Courts” of 3 November 1993;

the President of the Republic appointed Jurgis Tautkevičius to a judicial office of the local court until he reaches the age of 65 by the Decree (No. 217) “On the Appointment of Judges of Local Courts until they reach the Age of 65” of 28 October 1998;

the President of the Republic appointed Jurgis Tautkevičius to a judicial office of the Panevėžys district court by the Decree (No. 412) “On the Appointment the Judges of District Court” of 28 April 1999;

Jurgis Tautkevičius applied to the National Courts Administration with the request of 14 August 2002, seeking their mediation so that his powers of a judge would be prolonged until the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002) is finished (Paper of Jurgis Tautkevičius No. 3721-01-14 of 14 August 2002);

the Panevėžys Regional Court also submitted the National Courts Administration a request seeking their mediation so that the judge’s powers of Jurgis Tautkevičius would be prolonged until the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002) is finished (Paper of the President of the Panevėžys Regional Court No. 3646-01-14 (the date of the paper is not indicated) was received at the National Courts Administration on 19 August 2002);

by its Decision (No. 27) “On the Advice to the President of the Republic to Prolong the Powers of a Judge of a Regional Court” of 6 September 2002, the Council of Courts advised the President of the Republic to prolong the powers of Jurgis Tautkevičius, the judge of the Division of Criminal Cases of the Panevėžys Regional Court, until the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002) is finished;

on 8 September 2002, the judge Jurgis Tautkevičius reached the age of 65;

taking account of the advice of the Council of Courts, by his Decree (No. 1918) “On the Prolongation of the Powers of a Judge of a Regional Court” of 27 September 2002, the President of the Republic prolonged the powers of Jurgis Tautkevičius, a judge of the Division of Criminal Cases of the Panevėžys Regional Court, until the consideration of the aforesaid criminal cases is finished;

when the Decree of the President of the Republic (No. 1918) “On the Prolongation of the Powers of a Judge of a Regional Court” of 27 September 2002, by which the powers of Jurgis Tautkevičius, a judge of the Division of Criminal Cases of the Panevėžys Regional Court, were prolonged until the consideration of the said cases is finished, was in effect, on 28 January 2003, the Seimas adopted the Law Republic of Lithuania on Amending Article 57 of the Law on Courts (which came into force on 31 January 2003), whose Article 1 changed Paragraph 3 (wording of 24 January 2002) of Article 57 and set it forth in a new wording; it was stipulated that the judge’s powers may also be prolonged to judges of regional courts or administrative regional courts;

by its paper of 5 February 2003, the President of the Panevėžys Regional Court informed the President of the Republic in writing that the judge J. Tautkevičius finished the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002) and requested the release, as from 12 February 2003, of Jurgis Tautkevičius from the judicial office of the Panevėžys Regional Court due to the expiration of the term of his powers (Paper of the President of the Panevėžys Regional Court No. SD—693 of 5 February 2003).

on 5 February 2003, Jurgis Tautkevičius, a judge of the Division of Criminal Cases of the Panevėžys Regional Court, submitted an application to the President of the Republic requesting the prolongation of his judge’s powers until he reaches the age of 70 (the request of Jurgis Tautkevičius of 5 February 2003 was provided by fax; the request was received at the National Courts Administration on 7 February 2003);

by his Decree (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003, the President of the Republic released Jurgis Tautkevičius from the judicial office of Panevėžys Regional Court upon expiration of his term of powers.

3. It has been held in this ruling of the Constitutional Court that the legal regulation, when the possibility is provided to prolong the powers of judges upon expiration of their term, save the exceptions allowed by the Constitution itself, is incompatible with the Constitution and that Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

It has also been held that: the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions would be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated; in every case on such prolongation of the powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if the powers of a justice of the Supreme Court are prolonged) a Seimas resolution must be passed; in every such case, the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the prolongation of powers is necessary; such advice of the said special institution of judges to prolong the powers of the judge also means its advice to release the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished; the powers of the judge must be discontinued under the established procedure, when the corresponding legal fact to which the prolongation of the powers of a judge is related happens—the consideration of corresponding cases is finished; when this legal fact to which the prolongation of the powers of a judge is related happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the release of the judge from office when his powers have expired or when he has reached pensionable age established by law once again (as the corresponding advice has already been received).

It has been also held in this ruling of the Constitutional Court that Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts, in which the possibility of prolonging the powers of a justice of the Supreme Court of Lithuania, a judge of the Court of Appeal of Lithuania, the Supreme Administrative Court of Lithuania, a regional court and a regional administrative court who reached the age of 65 till he reaches the age of 70, is in conflict with Paragraphs 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

4. It has been also held in this ruling of the Constitutional Court that Paragraph 2 (wording of 24 January 2002) of Article 70 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law.

5. Having held that Paragraph 3 (wording of 28 January 2003) of Article 57 and Paragraph 2 (wording of 24 January 2002) of Article 70 of the Law on Courts are in conflict with the Constitution, and taking account of the circumstances established in the civil case considered by the Court of Appeal of Lithuania, the petitioner (and by taking account, inter alia, of the fact that by its Decision (No. 27) “On the Advice to the President of the Republic to Prolong the Powers of a Judge of a Regional Court” of 6 September 2002, the Council of Courts advised the President of the Republic to prolong the powers of Jurgis Tautkevičius, a judge of the Division of Criminal Cases of the Panevėžys Regional Court, until the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002) is finished), it should be held that:

the President of the Republic had received the advice from the Council of Courts that Jurgis Tautkevičius be released from office when the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002 is finished (because, as it has been held in this ruling of the Constitutional Court, the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the prolongation of powers also means its advice to release a judge from office as soon as the corresponding legal fact will happen—the consideration of corresponding cases will be finished);

the further investigation whether the impugned Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 is not in conflict with Paragraph 3 (wording of 28 January 2003) of Article 57 and Paragraph 2 (wording of 24 January 2002) of Article 70 of the Law on Courts which are in conflict with the Constitution themselves, is senseless from the point of view of constitutional justice; if such investigation were continued, the essence of constitutional justice itself would be distorted, since an essentially wrong presumption would be made, denying the concept of the entrenched in the Constitution hierarchy of legal acts on top of which there is the Constitution, and whereby, purportedly, a substatutory legal act must comply with an unconstitutional law; therefore, a matter of investigation no longer exists in this part of the case, and thus, this part of the case (the proceeding therein) must be dismissed;

the part of the case (proceedings therein) on the compliance of Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 with Paragraph 1 (wording of 24 January 2002) of Article 45 of the Law on Courts, in which it is prescribed that a judge may be appointed, transferred, released or removed from office only on the grounds and in accordance with the procedure established in the Constitution and this law, must also be dismissed;

because of the fact that such legal regulation when the possibility of prolonging the powers of a judge upon expiration of their term is provided is incompatible with the Constitution (taking account of, inter alia, the fact that the President of the Republic had received the advice from the Council of Courts that Jurgis Tautkevičius be released from office when the consideration of criminal cases No. 1-70-07/2002, No. 1-72-08/2002 and No. 1-75-07/2002 is finished), Article 1 (by which Jurgis Tautkevičius was released from the judicial office at Panevėžys Regional Court upon expiration of the term of powers) of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 may not be in conflict with the Constitution, inter alia, with Paragraph 2 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, Paragraph 5 of Article 112 of the Constitution and the constitutional principle of a state under the rule of law, specified by the Court of Appeal of Lithuania, the petitioner.

6. Taking account of the arguments set forth, the conclusion should be drawn that Article 1 of the Decree of the President of the Republic (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 is not in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 29, Paragraph 2 of Article 109, Paragraph 5 of Article 112 of the Constitution and the constitutional principle of a state under the rule of law.

V

On the compliance of Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts with Paragraph 2 of Article 5, Paragraph 2 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

1. In Article 128 (wording of 24 January 2002) of the Law on Courts it is established:

1. Material technical provision of courts shall be organised and ensured, in accordance with the approved expenditure estimates, by the Presidents of courts. The National Courts Administration shall organise and ensure a centralised way of providing the courts and the National Courts Administration with requisite supplies and services.

2. Draft state investment programmes shall be approved by the Council of Courts, and the state investment programmes shall be managed by the Ministry of Justice.

3. The courts shall perform the provision of informational and organisational services necessary for their functioning independently.

4. Buildings and other property used by the courts and the National Courts Administration shall be owned by the state. The courts and the National Courts Administration shall manage, use and hold this property on trust. The property transferred to the courts and the National Courts Administration may not be taken without a prior consent of the Council of Courts.

5. In individual cases, the courts may rent premises necessary for performance of their functions.”

2. Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts is composed of two provisions: (1) draft state investment programmes shall be approved by the Council of Courts; (2) the state investment programmes shall be managed by the Ministry of Justice.

Thus, the powers of two institutions—the Council of Courts and the Ministry of Justice—in the aspect of the state investment programmes are entrenched in Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts.

The provisions of said Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts are interrelated. Attention should be paid to the fact that a group of members of the Seimas, the petitioner, doubted on the compliance of Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts with the Constitution namely on the relation of the powers of two institutions—the Council of Courts and the Ministry of Justice—specified in this paragraph, in the aspect of the state investment programmes.

3. It has been held in this ruling of the Constitutional Court that to the extent that not only judges but also other persons compose the Council of Courts, Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts is in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law, also that under the Constitution, such Council of Courts may not have and implement the powers which only a self-governing judicial institution composed only of judges may have; the Council of Courts composed under Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts may not have and implement all the powers or a certain part of powers established in Item 15 (wording of 21 January 2003) of Article 120 of this law, under which, the Council of Courts shall consider and approve proposals for draft investment programmes and proposals for the draft budgets of district, regional and regional administrative courts and submit them to the Government, nor those established in Paragraph 2 (wording of 24 January 2002) of Article 127, under which, appropriation managers—the courts—shall submit their proposals for their draft budgets to the Council of Courts for consideration, while the latter submits them for consideration to the Government, nor those established in Paragraph 2 (wording of 24 January 2002) of Article 128 of the same law, under which draft state investment programmes shall be approved by the Council of Judges (and the state investment programmes shall be managed by the Ministry of Justice).

4. Having held this, it should also be held that the grounds in this constitutional justice case to investigate the relation of the powers of two institutions—the Council of Courts and the Ministry of Justice—specified in Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts, in the aspect of the state investment programmes, have disappeared. Without investigating this, however, it will be impossible to investigate whether Paragraph 2 (wording of 24 January 2002) of Article 128 of the Law on Courts is not in conflict with the Constitution, as a matter of investigation is no longer present in the case. This part of the case (proceedings thereof) must be dismissed.

5. It should also be noted that, as the Constitutional Court held in its ruling of 21 December 1999, the principle of independence of courts also includes the independent financing of courts from the executive; 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 state budget must provide as to how much finances should be allocated to every individual court so that proper conditions would be created for administration of justice.

State investment programmes is one of the sources of the financing of courts. While regulating the preparation of draft state investment programmes provided for to courts, their submission to the Government, allocation and redistribution of assignations for the state investment programmes and other relations linked to the state investment programmes provided for to courts, the legislature has certain discretion. However, while doing that, the legislature may not establish any such legal regulation whereby a certain state power institution would have the powers to draw up such draft state investment programmes and to submit them to the Government, without their prior approbating (i.e. without approving of them) by the self-governing judicial institution provided for by law, so that a certain state power institution might have the right to submit proposals, without their preliminary approbation, to the Government on the allocation of assignations for the state investment programmes provided for to courts, after the Seimas has provided for the funds for such programmes in the state budget, nor any such legal regulation whereby a certain state power institution might have the right to submit proposals, without preliminary such approbation, to the Government on the redistribution of assignations for the state investment programmes provided for to courts.

VI

1. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

2. The fact that to the extent that not only judges but also other persons compose the Council of Courts, Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts is by this ruling of the Constitutional Court ruled to be in conflict with Paragraph 2 of Article 5, Paragraph 5 of Article 112 of the Constitution, the constitutional principle of the separation of powers and the constitutional principle of a state under the rule of law does not mean that the decisions of the Council of Courts, which is composed under the aforesaid articles (parts thereof) of the Law on Courts to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office or any other decisions of such Council of Courts may be questioned only on these grounds.

3. The fact that it is construed in this ruling of the Constitutional Court that under the Constitution, only a very small number of judges may ex officio be members of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution does not mean, either, that the decisions of the Council of Courts, composed under the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office or any other decisions of such Council of Courts may be questioned only on these grounds, nor that the decisions adopted by the Council of Courts composed under the Law on Courts of the previous wording may be questioned only on these grounds.

4. It should be noted that the justices of the Supreme Court, Chairpersons of the divisions, the President of this Court were appointed by taking into account the provisions of the then valid Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) and/or of the provisions of the Law on Courts of even previous wording, which did not require that while appointing the justices, Chairpersons of divisions of the Supreme Court, and the President of this Court, as well as while releasing them from office, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution would advise the President of the Republic till the day of the public pronouncement of this ruling of the Constitutional Court in the courtroom of the Constitutional Court.

The fact that Paragraph 2 (wording of 24 January 2002) of Article 73, Paragraph 2 (wording of 24 January 2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 90 and Items 3 and 4 (wording of 24 January 2002) of Article 120 of the Law on Courts are by this ruling of the Constitutional Court ruled to be in conflict with the Constitution, does not mean that the powers of the justices and Chairpersons of the divisions of the Supreme Court, of the President of this Court who were appointed at the time when the Law on Courts of the previous wording was valid may be questioned only on these grounds and that these powers may discontinue or be discontinued only on the said grounds.

5. The provisions on the non-questioning of the powers of the justices and Chairpersons of the divisions of the Supreme Court, of the President of this Court set forth herein should also be applied mutatis mutandis to the powers of judges, Chairpersons of divisions and Presidents of other courts of the Republic of Lithuania.

6. The fact that Paragraph 3 (wording of 28 January 2003) of Article 57 of the Law on Courts is by this ruling of the Constitutional Court ruled to be in conflict with Constitution does not mean that the powers of the justices of the Supreme Court, or the judges of the Court of Appeal, regional courts, the Supreme Administrative Court or of the regional administrative courts that were prolonged under the then valid Law on Courts (wording of 24 January 2002) may be questioned only on these grounds and that these powers may discontinue or be discontinued only on the said grounds.

VII

1. It has been mentioned that under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

2. After this ruling of the Constitutional Court is officially published, from the day of its official publishing the articles (parts thereof) of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), which are ruled to be in conflict with the Constitution by this ruling of the Constitutional Court, shall no longer be applicable.

Thus, there occurs a certain vacuum of the legal regulation related, inter alia, to the functioning (implementation of powers) of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution. When the former legal regulation which existed in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) when the Council of Courts, composed under this law, could advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office no longer exists, a situation occurs that the President of the Republic may not implement the powers related to the formation of the corps of judges established to him in Item 11 of Article 84 and Article 112 of the Constitution, because, as it has been held in this ruling of the Constitutional Court, as long as the President of the Republic does not receive the advice from the said special institution of judges, he may not make his decision on the appointment, promotion, transfer or judges or their release from office. Nor will the Seimas be able to implement its powers in the formation of the corps of judges.

3. It is clear that such situation is possible only for a very short period of time, since, otherwise, the procedure for the appointment, promotion, transfer or judges or their release from office established in the Constitution may be violated. In order to avoid that, a duty arises for the legislature to fill in the occurred vacuum of the legal regulation immediately.

The said vacuum of the legal regulation may be fully eliminated only after the Seimas has made the corresponding amendments and/or supplements of the Law on Courts, by taking into account the constitutional concept of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution and other constitutional provisions (inter alia, by taking account of their construction provided in this ruling of the Constitutional Court and other acts of the Constitutional Court). Should more time be necessary for that, a duty arises for the Seimas to establish by law a temporary legal regulation, by heeding which and taking account of the constitutional status of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, as well as of its powers and the formation concept provided for in this ruling of the Constitutional Court and other provisions of the Constitution, a provisional special institution of judges would be formed. It would have the powers to advise the President of the Republic on the appointment, promotion, transfer or judges or their release from office, until the legislature, by taking account of the constitutional status of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, as well as of its powers and formation concept provided for in this ruling of the Constitutional Court and other provisions of the Constitution, regulates these relations in the amended Law on Courts.

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 Paragraph 2 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649), Paragraph 3 (wording of 21 January 2003, Official Gazette Valstybės žinios, 2003, No. 17-700) and Paragraphs 4, 5 and 6 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 56 of the Republic of Lithuania’s Law on Courts are in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania and the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

2. To recognise that Paragraph 3 (wording of 28 January 2003, Official Gazette Valstybės žinios, 2003, No. 12-440) of Article 57 of the Republic of Lithuania’s Law on Courts is in conflict with Paragraphs 2 and 3 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that Paragraph 4 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 71 and Paragraphs 2 and 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 72 of the Republic of Lithuania’s Law on Courts are in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

4. To recognise that Paragraph 2 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 73 of the Republic of Lithuania’s Law on Courts is not in conflict with the Constitution of the Republic of Lithuania.

5. To recognise that Paragraph 1 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 74 to the extent that it prescribes that the Council of Courts shall advise the President of the Republic on the appointment of the President, Vice President, Chairpersons of divisions of a regional court, a regional court and a regional administrative court, Paragraph 1 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 75 to the extent that it prescribes that the Council of Courts shall advise the President of the Republic on the appointment of the President and the Vice President of the Supreme Administrative Court, Paragraph 2 (wording of 21 January 2003, Official Gazette Valstybės žinios, 2003, No. 17-700) of Article 76, Paragraph 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 77 and Paragraph 2 (wording of 21 January 2003, Official Gazette Valstybės žinios, 2003, No. 17-700) of Article 78 of the Republic of Lithuania’s Law on Courts are in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

6. To recognise that Paragraph 2 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 79 and Paragraph 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 81 of the Republic of Lithuania’s Law on Courts are in conflict with Paragraph 2 of Article 5, Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

7. To recognise that Paragraph 7 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 81 of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

8. To recognise that Paragraph 3 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 90 of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 5, Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

9. To recognise that Paragraph 7 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 90 of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

10. To recognise that Paragraph 2 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 119 of the Republic of Lithuania’s Law on Courts to the extent that it prescribes that not only judges but also other persons compose the Council of Courts is in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

11. To recognise that the provision “the President of the Supreme Court shall be, by virtue of his office, the President of the Council of Judges” of Paragraph 5 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 119 of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

12. To recognise that Items 3 and 4 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 120 of the Republic of Lithuania’s Law on Courts are in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

13. To recognise that Item 13 (wording of 4 July 1996, Official Gazette Valstybės žinios, 1996, No. 67-1601) of Paragraph 3 of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995, Official Gazette Valstybės žinios, 1995, No. 36-887) and Paragraph 4 (wording of 4 July 1996, Official Gazette Valstybės žinios, 1996, No. 67-1601) of Article 17 and Paragraph 3 (wording of 18 April 1995, Official Gazette Valstybės žinios, 1995, No. 36-887) of Article 18 of the Republic of Lithuania’s Law “The Statute of the Supreme Court of Lithuania” are in conflict with Paragraph 2 of Article 5, Item 11 of Article 84 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law.

14. To recognise that Article 1 of the Decree of the President of the Republic of Lithuania (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 (Official Gazette Valstybės žinios, 2003, No. 16-656) is not in conflict with the Constitution of the Republic of Lithuania.

15. To dismiss the part of the case concerning the compliance of Paragraph 2 of Article 128 of the Republic of Lithuania’s Law on Courts (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) with the Constitution of the Republic of Lithuania.

16. To dismiss the part of the case concerning the compliance of Article 1 of the Decree of the President of the Republic of Lithuania (No. 2048) “On Releasing a Judge of the Regional Court from Office” of 10 February 2003 (Official Gazette Valstybės žinios, 2003, No. 16-656) with Paragraph 1 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 45, Paragraph 3 (wording of 28 January 2003, Official Gazette Valstybės žinios, 2003, No. 12-440) of Article 57 and Paragraph 2 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 70 of Republic of Lithuania’s Law on Courts.

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

                                                                                           Toma Birmontienė

                                                                                           Egidijus Kūris

                                                                                           Kęstutis Lapinskas

                                                                                           Zenonas Namavičius

                                                                                           Ramutė Ruškytė

                                                                                           Vytautas Sinkevičius

                                                                                           Stasys Stačiokas

                                                                                           Romualdas Kęstutis Urbaitis