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On dismissing legal proceedings

Case No. 34/03

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON DISMISSING THE LEGAL PROCEEDINGS IN THE CASE SUBSEQUENT TO THE PETITION OF THE THIRD VILNIUS CITY LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER PARAGRAPH 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 11 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS IS NOT IN CONFLICT WITH PARAGRAPH 2 OF ARTICLE 5, PARAGRAPHS 2 AND 3 OF ARTICLE 109, 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, INTO WHETHER THE REPUBLIC OF LITHUANIA’S LAW ON THE WORK PAY OF STATE POLITICIANS, JUDGES AND STATE OFFICIALS (WORDING OF 29 AUGUST 2000 WITH SUBSEQUENT AMENDMENTS AND SUPPLEMENTS) IS NOT IN CONFLICT WITH ARTICLE 5, PARAGRAPH 1 OF ARTICLE 30, PARAGRAPHS 2 AND 3 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, AND INTO WHETHER ITEM 1 OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 1494) “ON A PARTIAL AMENDMENT OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 689) ‘ON THE WORK PAY OF CHIEF OFFICIALS AND FUNCTIONARIES OF LAW AND ORDER INSTITUTIONS AND OF LAW ENFORCEMENT AND CONTROL INSTITUTIONS’ OF 30 JUNE 1997’” OF 28 DECEMBER 1999 IS NOT IN CONFLICT WITH ARTICLE 1, PARAGRAPH 1 OF ARTICLE 5, PARAGRAPHS 2 AND 3 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

 

8 August 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

The Constitutional Court of the Republic of Lithuania, at its procedural sitting, has considered the 16 July 2003 petition of the Third Vilnius City Local Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 11 of the Republic of Lithuania’s Law on Courts is not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of Article 109, 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, into whether the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution of the Republic of Lithuania by the Constitutional Court’s Ruling “On the Compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the Same Law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) ‘On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies’ of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) ‘On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania’ of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997’ of 28 December 1999 with the Constitution of the Republic of Lithuania” of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 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, and into whether Item 1 of the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 as well as 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.

The Constitutional Court

has established:

I

1. The Third Vilnius City Local Court, the petitioner, considered a civil case. The said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 11 of the Republic of Lithuania’s Law on Courts is not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of Article 109, 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, into whether the Law on the Work Pay of State Politicians, Judges and State Officials to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution by the Constitutional Court’s Ruling “On the Compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the Same Law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) ‘On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies’ of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) ‘On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania’ of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997’ of 28 December 1999 with the Constitution of the Republic of Lithuania” of 12 July 2001 (hereinafter also referred to as the Constitutional Court’s ruling of 12 July 2001) is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, and into whether Item 1 of the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 (hereinafter also referred to as the government resolution of 28 December 1999) is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

The petition was received at the Constitutional Court on 16 July 2003.

2. By the 11 August 2003 ordinance (No. 2B-71) of the President of the Constitutional Court, subsequent to this petition of the Third Vilnius City Local Court, the petitioner, the preparation of case No. 34/03 for a hearing of the Constitutional Court was begun.

II

The petition of the petitioner is grounded on the following arguments.

1. Under Paragraph 2 of Article 96 of the Law on Courts, it shall be prohibited to reduce a judge’s remuneration for work during his work in court, save the situations provided for in this law, or any other social guarantees, while under Paragraph 3 of Article 11 of the same law, when the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts. The established condition that it is permitted to reduce the remuneration or other social guarantees of a working judge is not concrete, it permits state institutions to interpret any necessity to pay certain sums from the budget as the worsening of the financial situation of the state, thus, it permits the legislature to worsen the financial and material conditions of activities of courts and/or judges and to reduce the social guarantees of working judges.

2. The legislature sought to regulate salaries of judges namely by the Law on the Work Pay of State Politicians, Judges and State Officials. After the Constitutional Court’s ruling of 12 July 2001 had come into force, whereby corresponding provisions of this law were ruled to be in conflict with the Constitution, there occurred a legal gap, since there is no legal regulation, which could be applied to the relations in the dispute in the case considered by the Third Vilnius City Local Court, the petitioner. This legal gap enables, when questions of establishment of the size of salaries of judges are decided, state institutions and officials (inter alia, Presidents of courts) to make judges and courts dependent on outside forces (inter alia, politicians), and to exert influence on them. In the opinion of the petitioner, who, inter alia, quotes the statement of the Constitutional Court’s decision of 6 May 2003 that “if the laws (parts thereof) do not establish certain legal regulation, the Constitution Court enjoys the constitutional powers to investigate the compliance of these laws (parts thereof) with the Constitution in the cases when due to the fact that the said legal regulation has not been established in particularly those laws (parts thereof) the principles and/or norms of the Constitution might be violated”, the Constitutional Court should hold that the said legal gap is in conflict with the Constitution.

3. By the Constitutional Court’s ruling of 12 July 2001, the legal proceedings on the compliance of the government resolution of 28 December 1999 with the Constitution was dismissed; in that constitutional justice case the constitutionality of the said Government resolution was not investigated in essence. The provision “shall be grounds to adopt a decision to dismiss the instituted legal proceedings” of Paragraph 4 of Article 69 of the Law on the Constitutional Court means that the Constitutional Court has the right, when it takes account of the circumstances of the considered case, to dismiss the instituted legal proceedings, but not that it must dismiss the instituted legal proceedings every time when the impugned legal act is annulled; when the Constitutional Court is addressed by a court, which considers a case, the Constitutional Court has a duty to consider the petition of the court regardless of whether the impugned legal act is in force or not; thus, the petition of the court-petitioner on the constitutionality of a legal act, which is applicable in a concrete case, must be considered in the Constitutional Court even though the impugned legal act is no longer in force. While interpreting the jurisprudence of the Constitutional Court (inter alia, the doctrinal provisions of its rulings of 5 April 2000 and 21 August 2002), the petitioner relates Paragraph 4 of Article 69 of the Law on the Constitutional Court with Item 3 of Paragraph 1 of the same article, under which, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force; in the opinion of the petitioner, a decision to refuse to accept a petition on the compliance of a legal act with the Constitution may be adopted only when the issue of the constitutionality of the legal act has been investigated in essence, while in cases when a court, which considers a case, applies to the Constitutional Court, in which the said legal act must be applied, the Constitutional Court must consider the issue in essence, even though it previously dismissed the legal proceedings on the constitutionality of this legal act. Thus, in the opinion of the petitioner, due to the fact that the compliance of the government resolution of 28 December 1999 was not investigated in essence in the constitutional justice case wherein the Constitutional Court’s ruling of 12 July 2001 was adopted, there are grounds to investigate the compliance of the said government resolution with the Constitution in this constitutional justice case.

The Constitutional Court

holds that:

I

1. The petitioner, inter alia, requests an investigation into whether Paragraph 3 of Article 11 of the Law on Courts is not in conflict with Article 5, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution as well as the constitutional principle of a state under the rule of law.

1.1. It is clear from the arguments of the petitioner that the Constitutional Court is requested to investigate whether the legal regulation consolidated in Paragraph 3 (wording of 24 January 2002) of Article 11 of the Law on Courts is not in conflict with the Constitution.

1.2. It is also clear from the arguments of the petitioner that he had doubts whether not entire Paragraph 3 (wording of 24 January 2004) of Article 11 of the Law on Courts is not in conflict with the Constitution, but only the provision “when the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts” of the said paragraph.

1.3. It is also clear from the arguments of the petitioner that it had doubts as regards the compliance of the provision “when the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts” of Paragraph 3 (wording of 24 January 2004) of Article 11 of the Law on Courts with, inter alia, not entire Article 5 of the Constitution, but only Paragraph 2 thereof providing that the scope of power shall be limited by the Constitution.

2. On 28 March 2006, in the constitutional justice case subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 4 of Article 69 of the Law on the Constitutional Court was not in conflict with Articles 6, 30, 109 and 110 of the Constitution as well as with the constitutional principle of a state under the rule of law and into whether Paragraph 3 of Article 11 of the Law on Courts and Paragraph 2 of Article 96 thereof to the extent that, according to the petitioner, it established the possibilities of decreasing the remuneration of judges and their other social guarantees were not in conflict with Articles 5 and 109, Paragraph 1 of Article 114 of the Constitution as well as with the constitutional principle of a state under the rule of law, the Constitutional Court adopted the Ruling “On the Compliance of Item 2 of Paragraph 1 of Article 62, Paragraph 4 (wording of 11 July 1996) of Article 69 of the Republic of Lithuania’s Law on the Constitutional Court and Paragraph 3 (wording of 24 January 2002) of Article 11, Paragraph 2 (wording of 24 January 2002) of Article 96 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania” whereby it, inter alia, recognised that the provision “When the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts” of Paragraph 3 (wording of 24 January 2002) of Article 11 of the Law on Courts was not in conflict with the Constitution.

This ruling of the Constitutional Court is still in force.

3. Thus, the issue of the compliance with the Constitution of the provision “When the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts” of Paragraph 3 (wording of 24 January 2002) of Article 11 of the Law on Courts, the compliance of which is doubted by the Third Vilnius City Local Court, the petitioner, was solved in the Constitutional Court’s Ruling “On the Compliance of Item 2 of Paragraph 1 of Article 62, Paragraph 4 (wording of 11 July 1996) of Article 69 of the Republic of Lithuania’s Law on the Constitutional Court and Paragraph 3 (wording of 24 January 2002) of Article 11, Paragraph 2 (wording of 24 January 2002) of Article 96 of the Republic of Lithuania’s Law on Courts with the Constitution of the Republic of Lithuania” of 28 March 2006.

4. Under Item 3 of Paragraph 1 of Article 69 of the Constitution, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force.

In the event that it is established before the consideration of the constitutional justice case at a public hearing of the Constitutional Court that there are grounds for refusal to consider the petition of a petitioner, a decision to dismiss the case is adopted in a procedural sitting of the Constitutional Court.

5. Taking account of the arguments set forth, it should be held that there are grounds to refuse to consider the petition of the petitioner, requesting an investigation into whether the provision “When the economic and financial situation of the country deteriorates considerably, the Seimas may review the financial and material conditions for the functioning of courts” of Paragraph 3 (wording of 24 January 2002) of Article 11 of the Law on Courts is not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution as well as the constitutional principle of a state under the rule of law. In this part of the case the legal proceedings must be dismissed.

II

1. The petitioner requests an investigation into whether, inter alia, the Law on the Work Pay of State Politicians, Judges and State Officials to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 12 July 2001, is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 and Paragraph 1 of Article 114 of the Constitution as well as the constitutional principle of a state under the rule of law.

2. The petitioner grounds its doubt as regards the compliance of the Law on the Work Pay of State Politicians, Judges and State Officials to the above extent with the Constitution that, according to him, after the Constitutional Court’s ruling of 12 July 2001 had come into force, there occurred a legal gap which enables, when questions of establishment of the size of salaries of judges are decided, state institutions and officials (inter alia, Presidents of courts) to make judges and courts dependent on outside forces (inter alia, politicians), and to exert influence on them.

3. The Constitutional Court is an institution of constitutional justice which executes constitutional judicial control; it enjoys the exceptional constitutional powers to investigate and decide whether constitutional laws (parts thereof) are not in conflict with the Constitution, whether laws (parts thereof) as well as the Statute of the Seimas (part thereof) are not in conflict with the Constitution and constitutional laws, whether substatutory acts (parts thereof) of the Seimas are not in conflict with the Constitution, constitutional laws, laws and the Statute of the Seimas, whether acts (parts thereof) of the President of the Republic are not in conflict with the Constitution, constitutional laws and laws, and whether acts (parts thereof) of the Government are not in conflict with the Constitution, constitutional laws and laws. In its acts, the Constitutional Court has held more than once that, when deciding under its competence on the compliance of the legal acts (parts thereof) of lower legal force with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, as well as when implementing its other constitutional powers, the Constitutional Court—individual and independent court—implements constitutional justice and guarantees the supremacy of the Constitution in the legal system and constitutional legitimacy (the Constitutional Court’s rulings of 12 July 2001, 29 November 2001, 13 December 2004, 28 March 2006, and 6 June 2006). When construing the provisions of the Constitution in a systemic manner, it should be held that the Constitutional Court ensures, within its competence, the hierarchy of legal acts consolidated in the Constitution, the compliance of all legal acts having the legal force of a constitutional law with the Constitution, the compliance of all legal acts having the legal force of a law with the Constitution and legal acts having the legal force of a constitutional law, as well as the compliance of all substatutory legal acts of the Seimas, acts of the President of the Republic and the Government with the Constitution, legal acts having the legal force of a constitutional law, and with legal acts having the legal force of a law.

4. Paragraph 1 of Article 107 of the Constitution provides that 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.

4.1. As Paragraph 1 of Article 102 of the Constitution (which provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws) is construed as meaning that the Constitutional Court has the exclusive competence to investigate and decide on whether a certain act (part thereof) of the Seimas, the President of the Republic or the Government, or that adopted by referendum is not in conflict with a certain legal act of higher legal force, inter alia (and, first of all), with the Constitution, so is Paragraph 1 of Article 107 of the Constitution to be construed as meaning that every legal act (part thereof) of the Seimas, the President of the Republic or the Government, as well as that passed by referendum, which by a decision (ruling) of the Constitutional Court is ruled to be in conflict with a certain legal act of higher legal force, inter alia (and, first of all), with the Constitution, is removed from the Lithuanian legal system for good and one will never be able to apply it again (the Constitutional Court’s ruling of 28 March 2006).

After the Constitutional Court has recognised that a constitutional law (part thereof) is in conflict with the Constitution, that a law (part thereof) or the Statute of the Seimas (part thereof) is in conflict with the Constitution or with a certain constitutional law, that a substatutory act (part thereof) of the Seimas is in conflict with the Constitution, a certain constitutional law or a law or with the Statute of the Seimas, that an act (part thereof) of the President of the Republic is in conflict with the Constitution, a certain constitutional law or a law, that an act (part thereof) of the Government is in conflict with the Constitution, a certain constitutional law or a law, a constitutional duty arises to a corresponding law-making subject—the Seimas, the President of the Republic, or the Government—to recognise such legal act (part thereof) as no longer valid or, if it is impossible to do without the corresponding legal regulation of the social relations in question, to change it so that the newly established legal regulation is not in conflict with legal acts of higher legal force, inter alia (and, first of all), the Constitution. But even until this constitutional duty is carried out, the corresponding legal act (part thereof) may not be applied under any circumstances. In this respect the legal force of such legal act is abolished (the Constitutional Court’s ruling of 6 June 2006).

4.2. In this context, it needs to be noted that, under Paragraph 2 of Article 107 of the Constitution, the decisions of the Constitutional Court on issues within its competence according to the Constitution shall be final and not subject to appeal, thus, the legal force of a ruling of the Constitutional Court to rule a legal act or part thereof unconstitutional may not be overruled by a repeated adoption of laws by the Seimas, or other acts of the Seimas, or acts of the President of the Republic, or acts of the Government (the Constitutional Court’s rulings of 30 May 2003, 28 March 2006, and 6 June 2006). The Constitutional Court has held that after the Constitutional Court rules a law (or part thereof), or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government to be in conflict with the Constitution, the institutions which had issued the corresponding act—the Seimas, the President of the Republic, and the Government—are prohibited from repeatedly establishing the legal regulation which has been ruled to be in conflict with the Constitution, by adopting corresponding laws and other legal acts afterwards (the Constitutional Court’s ruling of 30 May 2003).

4.3. When new laws are adopted, amended and/or already adopted laws and legal acts are supplemented (also when new legal regulation is established in order to meet the requirements of the Constitution, or when the existing legal regulation is corrected in order to harmonise it with the Constitution), all law-making subjects are bound by the jurisprudence of the Constitutional Court, inter alia, the official constitutional doctrine formed therein (in parts of reasoning of acts of the Constitutional Court), i.e. the official concept (official construction) of provisions (norms and principles) of the Constitution as well as other legal arguments set forth in acts of the Constitutional Court (the Constitutional Court’s ruling of 30 May 2003, its decision of 20 September 2005, its rulings of 14 March 2006, 28 March 2006, 9 May 2006, and 6 June 2006). It needs to be emphasised that the legal acts passed by the Seimas, the President of the Republic and the Government, and those adopted by referendum, which establish a new (different) legal regulation instead of the legal regulation that was ruled by the Constitutional Court to be in conflict with the Constitution, or which recognise legal acts (parts thereof) which are in conflict with the Constitution as no longer valid, under the established procedure may be challenged at the Constitutional Court.

5. In its rulings of 19 January 2005 and 23 August 2005, the Constitutional Court held that “after a ruling of the Constitutional Court goes into effect, whereby the law (part thereof) is ruled to be in conflict with the Constitution, there might emerge various indeterminacies in the legal system, lacunae legis—gaps in the legal regulation, or even a vacuum. In order to evade this, one must correct the legal regulation in time so that the gaps in the legal regulation as well as other indeterminacies could be removed and that the legal regulation might become clear and harmonious”.

It needs to be emphasised that the Constitution does not tolerate any such situation where a corresponding law-making subject (inter alia, the legislature) avoids or delays the adoption of corresponding laws and other legal acts whereby, while following the official concept of the provisions of the Constitution, which is set forth in rulings of the Constitutional Court, the legal regulation that was ruled to be in conflict with legal acts of higher legal force, inter alia (and, first of all), the Constitution, would be respectively corrected. Such situation is especially not to be tolerated, when, after upon the entry into force of a ruling of the Constitutional Court, which ruled a certain legal act (part thereof) to be in conflict with the Constitution (or another legal act of higher legal force), there occurs a lacuna legis, a legal gap, i.e. when certain social relations remain legally unregulated, although, when heeding the imperatives of the consistency and inner uniformity that arise from the Constitution and while account is taken of the content of these social relations, they must be legally regulated. On the other hand, the said correction of the legal regulation need not be performed by a single law-making action—one legal act; for instance, it does not stem from the Constitution that a corresponding law-making subject (the Seimas, the President of the Republic, the Government) would have to recognise, by means of a single act, that the legal act (part thereof), which was ruled by the Constitutional Court in its ruling to be in conflict with the Constitution, as no longer valid and in the same act to establish a new legal regulation, replacing the one that was ruled to be in conflict with the Constitution.

In this context, it should be mentioned that, as held by the Constitutional Court, “under the Constitution, the Constitutional Court, having, inter alia, assessed what legal situation might emerge after a ruling of the Constitutional Court becomes effective, may establish a date when that ruling of the Constitutional Court must officially be published; the Constitutional Court may postpone the official publishing of its ruling if it is necessary to give the legislature certain time to remove the lacunae legis which would occur if the relevant ruling of the Constitutional Court were officially published immediately after it had been publicly pronounced in the hearing of the Constitutional Court and if they constituted preconditions for basically denying certain values protected by the Constitution. The said postponement of the official publication of the Constitutional Court’s ruling (inter alia, a ruling by which a certain law (or part thereof) is ruled to be in conflict with the Constitution) is a presumption arising from the Constitution in order to avoid certain effects unfavourable to the society and the state, as well as the human rights and freedoms, which might occur if the relevant ruling of the Constitutional Court were officially published immediately after its official pronouncement in the hearing of the Constitutional Court and if it became effective on the same day after it had been officially published” (the Constitutional Court’s rulings of 19 January 2005 and 23 August 2005). Thus, the Constitutional Court enjoys the constitutional powers to establish also a later date of the official publishing (thus, also of entry into force) of its ruling, whereby a certain legal act (part thereof) was ruled to be in conflict with legal acts of higher legal force, inter alia (and, first of all), the Constitution, where, in case the Constitutional Court’s ruling after its adoption was immediately officially published, the vacuum or other indeterminacies might appear in the legal regulation due to which certain values entrenched in and defended and protected by the Constitution could be violated in essence (the Constitutional Court’s rulings of 24 December 2002, 19 January 2005, and 23 August 2005).

6. Legal acts (including those concerning the compliance of which with legal acts of higher legal force is decided by the Constitution Court according to the Constitution) are sources of law created by corresponding institutions of public power or by referendum, in which law—legal provisions set forth in a certain textual form—is entrenched. Legal acts as sources of law appear, they are amended (supplemented) and abolished by decisions adopted by corresponding institutions or by general vote (referendum). Thus, legal acts (including those concerning the compliance of which with legal acts of higher legal force is decided by the Constitution Court according to the Constitution) are always results of certain institutional decisions (actions) of law-making (in the broadest meaning of the term “institutional”, which also includes legal acts adopted by referendum). In case there was no law-making decision (on legal regulation of certain social relations), a legal act cannot appear, nor can it be amended (supplemented), nor abolished. In such way legal acts are different from such sources of law, as, for instance, legal customs, which appear (are created) not by means of institutional law-making decisions (actions), but on other grounds.

6.1. All legal acts are expressed in a certain textual form, and have certain linguistic expression. However, as held by the Constitutional Court, it is impossible to treat law solely as a text in which certain legal provisions and rules of behaviour are set forth expressis verbis; it is impossible to treat the legal reality solely in its textual form, only as an aggregate of its explicit provisions (the Constitutional Court’s ruling of 25 May 2004). Therefore, while investigating the compliance of legal acts (parts thereof) passed by the Seimas, the President of the Republic, the Government and those adopted by referendum with legal acts of higher legal force, inter alia (and, first of all), the Constitution, the Constitutional Court also investigates both the legal regulation that is explicitly, expressis verbis, consolidated in these legal acts (parts thereof), and the legal regulation which is consolidated in these legal acts (parts thereof) implicitly and is derived from the explicit legal provisions in the course of construction of law.

6.2. When investigating the compliance of legal acts (parts thereof) passed by the Seimas, the President of the Republic, the Government and those adopted by referendum with legal acts of higher legal force, inter alia (and, first of all), the Constitution, the Constitutional Court has to establish and, if it is necessary in view of the logic of the considered constitutional justice case, hold whether certain legal regulation established in a corresponding legal act (part thereof) of lower legal force is consolidated explicitly, or whether it is not explicitly consolidated therein. It needs to be emphasised that non-establishment of certain explicit legal regulation (lack of legal regulation, absence of respective explicit provisions) in the legal act (part thereof) investigated in a constitutional justice case does not yet mean that the said legal act (part thereof) does not regulate corresponding social relations at all, nor does it mean that no other legal acts regulate these social relations. It also needs to be noted that non-establishment of certain explicit legal regulation in the investigated legal act (part thereof) may be linked with various legal situations: in some cases the non-establishment of certain explicit legal regulation precisely in that legal act (precisely in that part thereof) is determined by the fact that corresponding legal provisions are explicitly or implicitly consolidated in another legal act (or in other parts of the same legal act); in other cases the absence of explicit legal norms regulating certain social relations in the said legal act (part thereof), provided they are not explicitly nor implicitly consolidated in other legal acts (or in other parts of the same legal act), should be treated as establishment of certain implicit legal regulation, which supplements and extends the explicit legal regulation (in some cases—as establishment of legal regulation, which consolidates the behaviour opposite to the established one) (thus, in certain cases it is possible to “discover” in an investigated legal act (in particular, in the investigated part thereof) the implicit provisions regulating corresponding social relations and supplementing and extending the explicit legal regulation); still in some other cases the said non-establishment of explicit legal regulation in that legal act (part thereof), provided corresponding legal regulation is not explicitly nor implicitly established in other legal acts (or in other parts of the same legal act) means that in that legal act (part thereof) there is a legal gap, which, in its turn, may be treated either as legislative omission, i.e. the legal gap prohibited by the Constitution (or some other act of higher legal force), or as a legal gap, which cannot be interpreted as legislative omission, since the Constitution (as well as any other legal act of higher legal force) does not require that corresponding legal regulation must be established, nor that it be established precisely in that legal act (precisely in that part thereof).

6.2.1. It has been mentioned that the non-establishment of certain explicit legal regulation precisely in the investigated legal act (precisely in the investigated part thereof) may be determined by the fact that corresponding legal regulation is explicitly or implicitly consolidated in another legal act (or in other parts of the same legal act). Such legal act (part thereof) could be ruled to be in conflict with a legal act of higher legal force, inter alia (and, first of all), the Constitution because of the fact that certain legal regulation is not consolidated precisely in that legal act (part thereof) only in cases when the said legal act of higher legal force insistently demands that corresponding legal regulation be established precisely in the investigated legal act (precisely in the investigated part thereof). In this context it needs to be mentioned that the Constitution insistently demands that certain social relations be regulated by means of a constitutional law or a law, and sometimes, as in Article 93, Paragraph 2 of Article 102 and Paragraph 4 of Article 11 of the Constitution, even indicates expressis verbis the title of the law.

6.2.2. It was also mentioned that the non-establishment of explicit legal regulation in the said legal act (part thereof), provided it is not explicitly nor implicitly consolidated in other legal acts (or in other parts of the same legal act), may be treated as establishment of certain implicit legal regulation, which supplements and extends the explicit legal regulation (in some cases—as establishment of legal regulation, which consolidates the behaviour opposite to the established one): although such implicit legal regulation is not established expressis verbis, it is possible to derive it consecutively from explicit legal norms in the course of construction of law. For instance, in private law the principle of general permission is dominant, under which “everything which is not forbidden is allowed”, the non-establishment of a certain explicit prohibition is, as a rule, treated as permission of corresponding behaviour (which is not explicitly prohibited), meanwhile, in public law, in which, as generally accepted, an opposite principle of special permission (or general prohibition) is dominant, under which “everything which is not allowed is forbidden”, the absence of a certain explicit permission should, as a rule, be interpreted as a prohibition against corresponding behaviour (which is not explicitly permitted). If such legal regulation established implicitly, but not explicitly, in a legal act of lower legal force consolidates certain behaviour, which is different from that established in a certain legal act of higher legal force, inter alia (and, first of all), the Constitution, this may serve as grounds for the Constitutional Court by its ruling to rule (by reasonably stating the existence of that implicit legal regulation) that legal act of lower legal force (part thereof) to be conflict with a corresponding legal act of higher legal force, inter alia (and, first of all), the Constitution, to the extent that it does not explicitly establish the respective legal regulation, and thus to remove that implicitly established legal regulation from the legal system. In this context, it should be mentioned that in the jurisprudence of the Constitutional Court legal acts (parts thereof) are rather often ruled to be in conflict with the Constitution to the extent that certain legal regulation is not explicitly established in these legal acts (parts thereof).

6.2.3. The absence of the legal provisions regulating certain social relations in a legal act (part thereof), if corresponding legal regulation is neither explicitly nor implicitly established in other legal acts (or in other parts of the same legal act) should be treated as a legal gap—lacuna legis. Having investigated the compliance of a legal act (part thereof) of the Seimas, the President of the Republic or the Government, or of a legal act (part thereof) adopted by referendum with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, the Constitutional Court may also hold that there is a legal gap in a respective legal act (part thereof). Such legal gaps may occur due to various reasons, inter alia, due to mistakes of law-making, also due to the fact that a corresponding subject of law-making did not regulate those social relations on purpose. Such gaps, both big and small, may also occur after by its decision the Constitutional Court ruled the legal regulation (part thereof) (articles (parts thereof) of legal acts) either implicitly or explicitly established in a certain legal act to be in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution; however, it needs to be emphasised that by no means does it mean that legal gaps occur after each ruling of the Constitutional Court comes into force, whereby a certain legal act (part thereof) of lower legal force is ruled to be in conflict with a legal act of higher legal force, inter alia (and, first of all), with the Constitution: legal situations are also possible, where the elimination of the provisions conflicting with provisions of legal acts of higher legal force, inter alia, the Constitution, from the legal system by means of a ruling of the Constitutional Court, with respect to the application of law virtually amounts to changing the overall legal regulation, i.e. the establishment of a different overall legal regulation that contains no gaps.

Alongside, it needs to be noted that any legal gap, no matter in what way it occurred, means that although certain social relations must be regulated legally (there is a need for their legal regulation), they are not legally regulated. All such gaps should be regarded as indeterminacies, shortcomings of the legal regulation and as deficiencies of the legal system which should be removed. In cases when a whole area of social relations is not regulated, there are even grounds to state the existence of so-called vacuum of legal regulation.

The legal gap, inter alia, the legislative omission, as one of varieties of non-establishment of explicit legal regulation, is essentially different form such non-establishment of explicit legal regulation which means that in the legal act there is legal regulation established implicitly (inter alia, legal regulation, which consolidates the behaviour opposite to the established one), which supplements and extends the explicit legal regulation, which, as mentioned before, may be in conflict with a certain legal act of higher legal force, inter alia, the Constitution. In cases where certain legal regulation implicitly established in a legal act (part thereof) establishes a certain behaviour and thereby supplements and extends the explicit legal regulation, there are no grounds to assert that, purportedly, this legal act (part thereof) does not regulate the corresponding social relations at all, since these social relations are in fact legally regulated, however, this legal regulation is consolidated in respective legal acts not explicitly, expressis verbis, but implicitly and is derived from the explicit legal provisions in the course of construction of law. Meanwhile, a legal gap, inter alia, legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly nor implicitly, neither in the said legal act (part thereof) nor in any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established, while heeding the imperatives of the consistency and inner uniformity of the legal system stemming from the Constitution and taking account of the content of these social relations, precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher legal force, inter alia, the Constitution itself.

6.2.3.1. Some legal gaps whose existence in the investigated legal act (part thereof) may be stated by the Constitutional Court may be regarded as such indeterminacies of legal regulation, which do not compete with the legal regulation established in legal acts of higher legal force and, by itself, it does not create preconditions for violating the latter. In itself, the statement of the existence of such legal gaps does not create grounds to rule an investigated legal act (part thereof) to be in conflict with legal acts of higher legal force, inter alia, the Constitution. In acts of the Constitutional Court, the legal gaps of such nature may also be regarded as not violating provisions of the Constitution (or those of other legal acts of higher legal force) (the Constitutional Court’s ruling of 21 April 1994, its decision of 11 July 1994, and its ruling of 22 December 1995).

6.2.3.2. In other cases, the absence of explicit legal provisions regulating certain social relations in the investigated legal act (part thereof) of lower legal force, provided corresponding legal regulation is not established either explicitly or implicitly also in other legal acts (or in other parts of the same legal act) and provided it is impossible to treat the non-establishment of the legal regulation in the investigated legal act (part thereof) as the discussed implicit legal regulation, which supplements and extends the explicitly established legal regulation, it to be treated as such legal gap that is prohibited by the Constitution (or a certain other legal act of higher legal force), i.e. as legislative omission. Legislative omission means that the corresponding legal regulation is not established in that legal act (part thereof), although, under the Constitution (or some other act of legal act of higher legal force, the compliance of the investigated legal act (part thereof) of lower legal force with which is assessed), it must be established precisely in that legal act (or precisely in that part thereof). It needs to be emphasised especially that legislative omission differs from other legal gaps also that it is always the consequence of the action of the law-making subject that issued a respective legal act, but not that of its failure to act, moreover, it is not a consequence of an action (especially, a lawful one) or failure to act of any other subject; for instance, such legal gap where certain social relations were not even begun to be regulated by certain legal acts, although there exists a need for their legal regulation, is not to be regarded as legislative omission; neither can legislative omission occur after by its ruling the Constitutional Court recognises in a constitutional justice case that a certain legal act (part thereof) is in conflict with a legal act of higher legal force, inter alia, with the Constitution.

Thus, it is necessary to distinguish legislative omission, as a consequence of an action by the law-making subject that issued a corresponding legal act, from the legal gaps that occurred due to the fact that the necessary law-making actions were not undertaken at all, neither one nor another law-making subject issued a legal act designated for regulation of certain social relations, and due to this these social relations remained legally not regulated. Under certain circumstances, especially when the Constitution demands that these social relations be legally regulated (and sometimes it explicitly indicates that they must be regulated not by means of any legal act, but by means of a constitutional law or a law), the absence of law-making actions actually may create preconditions for the occurrence of an anti-constitutional situation—such state of social relations, where these relations are developing not on the grounds of law, although, as mentioned before, the Constitution demands that they be legally regulated. However, such legal regulation, to be more precise, its absence, is not legislative omission.

The “detection” of legislative omission par excellence in a legal act (part thereof) of lower legal force is, if it is necessary because of the logic of the considered constitutional justice case, sufficient grounds to rule that legal act (part thereof) to be in conflict (to corresponding extent, i.e. to the extent that the legal act (part thereof) does not consolidate the legal regulation required by legal acts of higher legal force, inter alia (and, first of all), with the Constitution) with the Constitution (other legal act of higher legal force).

6.2.3.3. The elimination of legal gaps (without excluding legislative omission) is a matter of competence of respective (competent) law-making subject. However, it is possible to certain extent to fill the legal gaps that are in legal acts of lower legal force also in the course of the application of law (inter alia, by making use of legal analogy, by applying general principles of law, as well as legal acts of higher legal force, first of all the Constitution), thus, also in the course of construction of law (inter alia, when this is done by courts of general jurisdiction and the specialised courts established under Paragraph 2 of Article 111 of the Constitution, which administer justice and decide, within their competence, individual cases and which have to construe law so that they would be able to apply it). Alongside, it needs to be noted that the courts can fill the legal gaps that are in legal acts of lower legal force only ad hoc, i.e. by this way of the application of law the legal gaps are removed only as regards a particular social relation due to which the dispute is decided in the case investigated by the court. On the other hand, the judicial (ad hoc) removal of legal gaps creates preconditions for the formation of the same court practice in deciding cases of a certain category—the law which is entrenched in court precedents, which, it goes without saying, later can be changed or corrected otherwise by the legislature (or another competent law-making subject), when it regulates certain social relations by means of a law (or other legal act), thus removing the corresponding legal gap already not ad hoc, but by prospective legal regulation of a general character.

Thus, it is possible to completely remove legal gaps (as well as legislative omission) only when the law-making institutions issue respective legal acts. The courts cannot do this, they can fill the legal gaps that are in legal acts of lower legal force only ad hoc, since the courts administer justice, but they are not legislative institutions (in the positive and broadest sense of this term); such limitation on the possibilities for courts in this area is especially evident when one confronts gaps in substantive law. However, in all cases there is an undeniable possibility for courts to fill a legal gap, which is in a legal act of lower legal force, ad hoc. If such empowerments of courts were denied or not recognised, if the opportunities of courts to apply law, first of all the supreme law—the Constitution—depended on whether a certain law-making subject did not leave gaps in the legal regulation (legal acts) whose existence the court has discovered, and if courts were able to decide cases only after these legal gaps are filled by way of law-making, then one would have to hold that the courts, when they decide cases, apply not law, not, first of all, the supreme law—the Constitution—but only a law (in the general sense of this term), that they administer justice not according to law, but only formally apply articles (parts thereof) of legal acts, that constitutional values, inter alia, the rights and freedoms of the person, may be injured (and not compensated, nor redressed) only because a corresponding law-making subject has not legally regulated certain relations (or when such a subject legally regulates them, but not intensively enough), i.e. that although certain values are entrenched in the Constitution, they, under the Constitution, are not properly defended and protected. This would not be in line with the social and constitutional purpose of courts. Besides, it would mean that law is treated only as its textual form and is identified with the latter.

7. In acts of the Constitutional Court (inter alia, its decision of 16 April 2004, its rulings of 29 December, 19 January 2005, 16 January 2006, and 28 March 2006), various aspects of legislative omission, as a phenomenon of legal reality, have been disclosed.

In the jurisprudence of the Constitutional Court (inter alia, its ruling of 25 January 2001, its decisions of 6 May 2003, 13 May 2003, and 16 April 2004, and its ruling of 13 December 2004), one follows the provision that the Constitutional Court enjoys the constitutional powers not only to hold that there is a legal gap, inter alia, legislative omission, in the investigated legal act of lower legal force (part thereof), but also by its ruling adopted in the constitutional justice case it can rule such legal regulation to be in conflict with legal acts of higher legal force, inter alia, the Constitution. However, in order that the Constitutional Court accept to consider a petitioner wherein a real or alleged legal gap, inter alia, legislative omission, is impugned, let alone that the Constitutional Court would be able by its rulings to rule a particular legal regulation to be in conflict with legal acts of higher legal force, inter alia, the Constitution, it is necessary to follow certain conditions, which are defined in the jurisprudence of the Constitutional Court (inter alia, in the aforesaid rulings and decisions of the Constitutional Court), namely: if the laws and other legal acts (parts thereof) of lower legal force do not establish certain legal regulation, the Constitutional Court has the constitutional powers to rule these laws or other legal acts (parts thereof) to be in conflict with the Constitution or other legal acts of higher legal force in cases when due to the fact that the said legal regulation is not established in precisely the investigated laws or other legal acts (precisely in the investigated parts thereof), the principles and/or norms of the Constitution, the provisions of other legal acts of higher legal force might be violated; however, in the cases when the law or other legal act (part thereof), which is impugned by the petitioner and which is investigated by the Constitutional Court, does not establish certain legal regulation which, under the Constitution (and if a substatutory act (part thereof) of the Seimas, and act (part thereof) of the President of the Republic or the Government is impugned—also under the laws) need not be established precisely in the impugned legal act (precisely in that part thereof), the Constitutional Court holds that the matter of investigation is absent in the case on the petition of the petitioner—this is the basis to dismiss the instituted legal proceedings (if a respective petition was accepted at the Constitutional Court and preparation of a constitutional justice case for the Constitutional Court’s hearing began) or to dismiss the case (if the constitutional justice case has already been investigated in the Constitutional Court’s hearing).

8. Attention should be paid to the fact that, while deciding whether the Constitutional Court enjoys, under the Constitution, the powers to rule a legal gap (or other absence of explicit legal provisions in that legal act) of lower legal force to be in conflict with the Constitution or other legal act of higher legal force, it is impossible to confine oneself solely to the doctrinal provision (statement) “if the laws (parts thereof) do not establish certain legal regulation, the Constitution Court enjoys the constitutional powers to investigate the compliance of these laws (parts thereof) with the Constitution in the cases when due to the fact that the said legal regulation has not been established in particularly those laws (parts thereof) the principles and/or norms of the Constitution might be violated” of the Constitutional Court’s decision of 6 May 2003. It is also necessary to take account of how the said legal gap occurred: whether it is legislative omission, created by means of a law-making action of the subject who passed a corresponding legal act (i.e. due to the fact that, in the course of passage of this legal act, the legal relations that should have been regulated precisely in that legal act (precisely in that part thereof), were not regulated precisely in that legal act (precisely in that part thereof)), whether this legal gap occurred due to other circumstances, for example, due to the fact that by its ruling the Constitutional Court had recognised that the legal regulation in a certain legal act (part thereof) of lower legal force was in conflict with the Constitution or other legal act of higher legal force. In the latter case, as mentioned before, there are no grounds to state the presence of legislative omission; to the contrary, in this situation, under the Constitution, a corresponding subject of law-making (provided corresponding legal relations have to be legally regulated) is under obligation to change the no longer valid legal regulation so that the newly established legal regulation would not be in conflict with a corresponding legal act of higher legal force, inter alia (and, first of all), with the Constitution.

A different concept of legislative omission, as well as a different construction of the powers of the Constitutional Court to investigate the compliance of legal acts of lower legal force with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, and to recognise, by its rulings, that the legal gaps present in those legal acts (parts thereof) of lower legal force are in conflict with legal acts of higher legal force, inter alia, the Constitution, namely the construction that, purportedly, the Constitutional Court may or must investigate also such legal gaps which are not the consequence of an action of the law-making subject that issued a certain legal act, for example, such legal gaps where certain legal relations have not even been begun to be regulated by any legal acts, although there is a need for their legal regulation, as well as such legal gaps or other indeterminacies, which could occur after the Constitutional Court recognised by its ruling that a certain legal act (part thereof) is in conflict with a legal act of higher legal force, inter alia, the Constitution, would deny the essence of legislative omission as the consequence of an action of the law-making subject that issued the corresponding legal act. In addition, an assumption that, purportedly, the Constitutional Court may or must investigate also such legal gaps or other indeterminacies, which occurred after the Constitutional Court itself recognised by its ruling that that a certain legal act (part thereof) is in conflict with a legal act of higher legal force, inter alia, the Constitution, would mean that the Constitutional Court, while acting within its constitutional competence, by the said ruling created the legal situation (i.e. that it virtually created new legal regulation instead of that ruled in conflict with a legal act of higher legal force, inter alia, the Constitution), which is incompatible with the Constitution or other legal act of higher legal force; such construction of the Constitutional Court’s powers to recognise, by its ruling, that legal gaps are in conflict with the Constitution, would in essence distort and even deny the essence and meaning of constitutional review and constitutional justice.

By the said assumption one would also ignore the fact that under Paragraphs 1 and 2 of Article 105 of the Constitution the Constitutional Court investigates whether precisely legal acts, but not non-adoption of law-making decisions by state institutions (the Seimas, the President of the Republic, the Government), i.e. avoidance or delay to adopt such decisions, as well as failure to act, which is determined by other motives. It also needs to be emphasised that, as mentioned before, 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; this means that every legal act (part thereof) of the Seimas, the President of the Republic or the Government, as well as that passed by referendum, which by a decision (ruling) of the Constitutional Court is ruled to be in conflict with a certain legal act of higher legal force, inter alia (and, first of all), with the Constitution, is removed from the Lithuanian legal system for good and one will never be able to apply it again. After all, if the constitutional empowerments of the Constitutional Court were interpreted as those including also the (alleged) powers to investigate and adopt a decision that the fact that state institutions do not adopt law-making decisions, when no legal act is passed at all, is in conflict with the Constitution or other legal act of higher legal force, then it would become completely unclear, how in such cases Paragraph 1 of Article 107 of the Constitution (which is a directly applicable act (Paragraph 1 of Article 6 of the Constitution)) must be applied, since in such cases there is no legal act (part thereof) at all, which may be impugned by the subjects specified in the Constitution at the Constitutional Court. Thus, the said assumption would deny and distort in essence also the concept of the constitutional legal effects of acts of the Constitutional Court.

It has been held that after the Constitutional Court has recognised by its ruling that a legal act (part thereof) of lower legal force is in conflict with a legal act of higher legal force, inter alia, the Constitution, a constitutional duty arises to a corresponding law-making subject to recognise such legal act (part thereof) as no longer valid or, if it is impossible to do without the corresponding legal regulation of the social relations in question, to change it so that the newly established legal regulation is not in conflict with legal acts of higher legal force, inter alia (and, first of all), the Constitution. Until this has not been done, the corresponding legal gap (which, as emphasised in this decision of the Constitutional Court, is not legislative omission) persists. In order to remove it, a certain period of time might be necessary. However, even the fact that this time might be quite lengthy, in itself does not mean that the Constitutional Court is granted the powers to investigate the compliance of the same legal act with respect to legal acts of higher legal force, inter alia, the Constitution, which in the same aspect has already been investigated by the Constitutional Court in an earlier considered constitutional justice case, and upon the investigation of which and entry into force of the corresponding ruling of the Constitutional Court the said legal gap precisely occurred.

Thus, the Constitutional Court, which, under the Constitution, enjoys the exclusive powers to investigate and adopt decisions regarding any consequences of law-making decisions (actions) of the Seimas, the President of the Republic or the Government, i.e. regarding the compliance of legal acts (parts thereof) with legal acts of higher legal force, inter alia (and, first of all), the Constitution, does not have any powers, under Paragraphs 1 and 2 of Article 105 and Paragraph 1 of Article 107 of the Constitution, to investigate non-adoption of law-making decisions by state institutions, the compliance of legal acts adopted by which with the Constitution is investigated by the Constitutional Court, i.e. avoidance and delay to adopt such decisions, as well as failure to act, which is determined by other motives, even though in the legal system there occur gaps or other indeterminacies due to such failure to act. Thus, the subjects pointed out in the Constitution, which can impugn the compliance of precisely the legal acts (parts thereof) that were adopted by the Seimas, the President of the Republic, or the Government, or the compliance of legal acts (parts thereof) adopted by referendum with legal acts of higher legal force, inter alia, the Constitution, cannot impugn the avoidance and delay to adopt such law-making decisions or failure to act, which is determined by other motives, due to which corresponding legal acts have not been passed, including those which have to be passed so that, by taking account of acts of the Constitutional Court, such legal regulation would be established, which would be in compliance with the Constitution or other legal acts of higher legal force.

If a corresponding law-making subject has not passed a legal act (acts) (parts thereof) whereby a new (different) legal regulation would be established instead of the legal act (parts thereof) ruled by the Constitutional Court to be in conflict with a legal act of higher legal force, inter alia, the Constitution, also if the said subject has not passed a legal act (acts) (parts thereof) whereby the legal act (part thereof) ruled by the Constitutional Court to be in conflict with a legal act of higher legal force, inter alia, the Constitution, is recognised as no longer valid, then, as it was held in this decision of the Constitutional Court, there is no legal act which may be impugned by the subjects specified in the Constitution at the Constitutional Court; thus, in such case there is no legal act (part thereof) with whose respect the Constitutional Court might exercise constitutional control.

9. The jurisprudence of the Constitutional Court has stated more than once the imperative arising from the constitutional principle of a state under the rule of law and other provisions of the Constitution (inter alia, Paragraph 1 of Article 30 of the Constitution which provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court), whereby a person, who thinks that his rights or freedoms are violated, has the absolute right to an independent and impartial court—an arbiter, which would solve the dispute. Along with other things, it has been held that the constitutional right of the person to apply to court cannot be artificially restricted, nor that the implementation of this right may be unreasonably burdened; that also pre-judicial procedure of consideration of disputes may be established, however, it is not permitted to establish any such legal regulation which would deny the right of the person who thinks that his rights or freedoms have been violated to defend his rights or freedoms in court; that every person, who thinks that his rights or freedoms have been violated, has the right to protect his rights and freedoms in court; that the defence of his violated rights is guaranteed to the person regardless of his legal status; that the violated rights of the person, inter alia, the acquired rights, as well as legitimate interests must be protected regardless of whether they are directly consolidated in the Constitution; that the rights of the person must be protected not formally, but in reality and in an effective manner against unlawful actions of private persons as well as against those of state institutions or officials (the Constitutional Court’s rulings of 6 December 1995, 1 October 1997, 5 February 1999, 21 December 1999, 8 May 2000, 19 September 2000, 12 February 2001, 5 June 2001, 12 July 2001, 2 July 2002, 23 October 2002, 4 March 2003, 10 June 2003, 17 August 2004, 13 December 2004, 29 December 2004, 7 February 2005, 10 November 2005, 16 January 2006, 28 March 2006, 9 May 2006, and 6 June 2006). If the constitutional right of the person to apply to court were not ensured, the generally recognised legal principle ubi ius, ibi remedium—if there is a certain right (freedom), there must be a measure for its protection—would be disregarded. Such legal situation where a certain right or freedom of the person cannot be defended, also by means of the judicial procedure, although the person himself thinks that this right or freedom has been violated, is, under the Constitution, impossible, nor does the Constitution tolerate this.

9.1. Therefore, the fact that the subjects specified in the Constitution may not impugn in the Constitutional Court such failure of a law-making subject to act, where, instead of the legal regulation that was ruled by the Constitutional Court to be in conflict with a legal act of higher legal force, inter alia, the Constitution, it has not passed a legal act (acts) (parts thereof) which establish a new (different) legal regulation harmonised with the said legal acts of higher legal force, inter alia, the Constitution, while the Constitutional Court does not have the powers to investigate non-adoption of such law-making decisions, does not mean that the aforementioned persons cannot defend their rights and freedoms (as well as in court) at all, which are violated because the said law-making decisions have not been adopted. The general legal principle ubi ius, ibi remedium, the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be a directly applicable act, the constitutional principle of responsible governance, the provision of Paragraph 3 of Article 5 of the Constitution that state institutions shall serve the people, the provision of Article 18 of the Constitution that human rights and freedoms shall be innate, as well as the right of the person who thinks that his rights or freedoms have been violated to apply to court, which is consolidated in the Constitution, imply not only the fact that in such cases the rights, freedoms, legitimate interests and legitimate expectations must and may be defended by means of construction of the Constitution and direct application of its provisions, but also that such protection must be guaranteed by courts.

9.2. It has been held in this decision of the Constitutional Court that legal gaps (including legislative omission) which are in legal acts of lower legal force can be filled ad hoc, when courts within their competence decide cases on an individual social relation and when they apply (and construe) law. Therefore, in cases where, instead of the legal regulation that was ruled by the Constitutional Court to be in conflict in conflict with a legal act of higher legal force, inter alia, the Constitution, a corresponding law-making subject has not passed a legal act (acts) (parts thereof) which establish a new (different) legal regulation harmonised with the said legal acts of higher legal force, inter alia, the Constitution, the courts have a constitutional duty to ensure the rights and freedoms of the person who applies to court regarding violation of his rights or freedoms, and they have to ensure other constitutional values; thus, the courts, doubtless to say, enjoy the powers which stem from the Constitution to apply, inter alia, the general principles of law, as well as legal acts of higher legal force, and, first of all, the Constitution—supreme law; otherwise, one would have to hold that the Constitution itself prohibits the courts from administering justice, but this would absolutely be groundless from the constitutional standpoint. In the course of the application of law, also in cases where, instead of the legal regulation that was ruled by the Constitutional Court to be in conflict in conflict with a legal act of higher legal force, inter alia, the Constitution, a corresponding law-making subject has not passed a legal act (acts) (parts thereof) which establish a new (different) legal regulation harmonised with the said legal acts of higher legal force, inter alia, the Constitution, the courts must follow inter alia, the constitutional concept of human rights and freedoms, the maxim recognising the innate nature of human rights and freedoms consolidated in the Constitution, the constitutional principles of a state under the rule of law, justice, legal certainty and legal security, proportionality, due process of law, and of equal rights of persons, as well as the constitutional principle of legitimate expectations (which, as it was held in the Constitutional Court’s ruling of 13 December 2004, implies that in certain, exceptional cases one has to protect also such acquired rights of the person arising from the legal acts ruled later in conflict with the Constitution (substatutory legal acts—in conflict with the Constitution and/or laws), which, if not defended or protected, would result in greater harm to the person, other persons, society or the state, than the harm inflicted in case of total non-defence or non-protection or partial defence or protection of the said rights). If in cases where, instead of the legal regulation that was ruled by the Constitutional Court to be in conflict in conflict with a legal act of higher legal force, inter alia, the Constitution, a corresponding law-making subject has not passed a legal act (acts) (parts thereof) which establish a new (different) legal regulation harmonised with the said legal acts of higher legal force, inter alia, the Constitution, for certain reasons the courts avoided implementing their constitutional powers to apply, inter alia, the general principles of law, as well as legal acts of higher legal force, first of all, the Constitution—supreme law—and thus avoided ensuring human rights and freedoms, one would have to hold that the courts do not stand for their constitutional purpose of administration of justice, that they ignore the constitutional principles of a state under the rule of law and justice, the general legal principle ubi ius, ibi remedium, the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be an integral and directly applicable act, also that a person might experience damage and remain unprotected, his rights and freedoms as well as legitimate interests and legitimate expectations might be non-secured only because a corresponding law-making subject, i.e. a state institution, has not performed its constitutional duty—where, instead of the legal regulation that was ruled by the Constitutional Court to be in conflict in conflict with a legal act of higher legal force, inter alia, the Constitution, a corresponding law-making subject has not passed a legal act (acts) (parts thereof) which establish a new (different) legal regulation harmonised with the said legal acts of higher legal force, inter alia, the Constitution. Not only would it essentially shatter the confidence of that person in the state and law, but also, if such practice became wide-spread, it might create pre-conditions for the thriving of such arbitrariness of state power, where it does not act in the way it should act, as well as for legal nihilism, and, in the long run, for distrust in the state and its law to the greater part of society or even the entire society.

However, it needs to be emphasised that when the courts execute these constitutional powers, legal gaps are not removed for good—they are only filled ad hoc; still, this permits one to ensure the protection of the rights and freedoms of the person, who applies to court regarding defence of his violated rights, precisely in that individual social relation due to which the case is considered in the court of general jurisdiction or in a specialised court established under Paragraph 2 of Article 111 of the Constitution. This should also motivate the competent law-making subject to remove, more speedily and in a proper manner, the existing legal gap, i.e. to establish the missing legal regulation instead of the one ruled to be in conflict with the Constitution.

10. On 29 August 2000, the Seimas adopted the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials (having overcome, after a repeated deliberation, the veto of the President of the Republic, which had been stated by the Decree of the President of the Republic (No. 9721) “On Reference of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas of the Republic of Lithuania, back to the Seimas of the Republic of Lithuania for Repeated Deliberation”, which was stated in connection with the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 13 July 2001), which established “the sizes of salaries and conditions of payment thereof of state politicians, judges and state officials of the Republic of Lithuania, to whom the Republic of Lithuania’s Law on the State Service is not applied” (Article 1).

In this context, it should be mentioned that the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 29 August 2000, was officially published in the official gazette “Valstybės žinios” on 7 September 2000.

It was prescribed in Article 8 of the same law (which later, by the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 17 October 2000, was recognised as no longer valid) that it “shall come into force on 1 August 2000” (save a separately specified exception).

Taking account of the fact that, under the Constitution, only published laws shall be valid (Paragraph 2 of Article 7 of the Constitution), of the fact that, according to the general legal principle lex retro non agit (which is also established in the Constitution of the Republic of Lithuania), the legal force of legal acts must be only prospective (save the cases allowed by the general legal principle lex benignior retro agit), as well as of the fact that under Paragraph 1 of Article 70 of the Constitution, the laws adopted by the Seimas shall come into force after they are signed and officially promulgated by the President of the Republic, unless the laws themselves establish a later date for their coming into force, it should be held that the provisions of the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 29 August 2000, could be applied only as from 7 September 2000, after this law had been published in the official gazette “Valstybės žinios”, and that it could not be applied to any relations, which occurred before that date.

Alongside, it needs to be noted that neither the time of the adoption, official publishing and entry into force of the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, nor the date of the beginning of the application of this law, nor other circumstances related therewith are a matter of investigation in this constitutional justice case.

11. Until the entry into force of the Constitutional Court’s ruling of 12 July 2001, the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000) was amended and/or supplemented: by the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 17 October 2000; by the Republic of Lithuania’s Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 27 March 2001; the Republic of Lithuania’s Law on Amending Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials and Chapter IV of the Appendix of the Same Law, which was adopted by the Seimas on 8 May 2001; and the Republic of Lithuania’s Law on Amending Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials and the Appendix of the Same Law, which was adopted by the Seimas on 24 May 2001.

12. On 12 July 2001, in the constitutional justice case subsequent to petitions of petitioners—the First Vilnius City Local Court, the Higher Administrative Court, the Vilnius Regional Administrative Court (in all, eleven petitions of these petitioners, which are given here as a summary), requesting an investigation into whether Article 4, Paragraphs 1 and 3 of Article 5, Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix “Positional Salaries of Judges” to the Same Law, the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law on Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Government Resolution (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” of 29 November 1991, the Government Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997, the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 were not in conflict with Articles 5 and 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court adopted the Ruling On the Compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the Same Law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) ‘On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies’ of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) ‘On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania’ of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997’ of 28 December 1999 with the Constitution of the Republic of Lithuania” whereby it recognised, inter alia, that:

Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and 27 March 2001) of the Law on the Work Pay of State Politicians, Judges and State Officials, the provision of Paragraph 6 of Article 7 of the same law establishing the transitional period (during which judges’ remuneration of work had to be reduced) and Chapter II entitled “Positional Salaries of Judges” of the Appendix to the same law to the extent that it had established reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law were in conflict with Article 5, Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 4 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials to the extent that it prescribed that the remuneration for work of the judges appointed to the post of a judge during the transitional period (during which judges’ remuneration of work had to be reduced) is established and computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration conflict with Article 5, Article 109, 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.

13. In this context, it needs to be noted that after the Constitutional Court’s ruling of 12 July 2001 had come into force, the explicit legal regulation (the explicit formulation of the provisions set forth therein, the text of the articles parts thereof) established in Item 1 (wording of 27 March 2001) of Paragraph 3, Paragraph 4 (wording of 29 August 2000), Paragraph 5 (wording of 27 March 2001) and Paragraph 6 (wording of 29 August 2000) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements), and Chapter II entitled “Positional Salaries of Judges” of the Appendix (wording of 29 August 2000) to the same law remained the same as it had been before the entry into force of the Constitutional Court’s ruling of 12 July 2001.

13.1. Paragraph 3 (wording of 29 August 2000) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows:

3. State politicians, judges and state officials,

1) whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months and of the established additional and extra pay of the preceding twelve months (hereinafter referred to as the former remuneration for work) is bigger than the remuneration for work established in this Law shall, upon the entry of this Law into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000. During the established transitional period (from 1 January 2001 till 1 January 2003) the former remuneration for work paid until 1 January 2001 shall be reduced by computing the appertaining remuneration for work for every month (until it becomes equal with the remuneration for work established in this Law) by the following formula:

A = C (1 – M).

Here:

A means the appertaining remuneration for work during the transitional period;

C means the former remuneration for work;

M means the coefficient of recomputation of the remuneration for work, gradually decreasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2001

2002

Half-years

I

II

I

II

M

0.2

0.4

0.65

0.9

 

2) whose former remuneration for work is smaller than the remuneration for work established in this Law, shall be paid bigger remuneration for work the size of which shall be attained gradually, by computing every month, during the transitional period, the remuneration for work appertaining to a state politician, judge or state official by the following formula:

A = [(B – C) x D] +C.

Here:

A means the appertaining remuneration for work during the transitional period;

B means the remuneration for work established in this Law;

C means the former remuneration for work;

D means the coefficient of recomputation of the remuneration for work, gradually increasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2000

2001

2002

2003

2004

2005

D

0

0.1

0.3

0.5

0.7

0.9”

 

13.2. Paragraph 3 (wording of 17 October 2000, established by the Seimas by the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials which was adopted on the same day, by Article 3 whereof Item 1 (wording of 29 August 2000) of Paragraph 3 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials was amended and set forth in a different way) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows:

3. State politicians, judges and state officials,

1) whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months and of the established additional and extra pay of the last twelve months (hereinafter referred to as the former remuneration for work) is bigger than the remuneration for work established in this Law shall, upon the entry of this Law into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000. During the established transitional period (from 1 January 2001 till 1 January 2003) the former remuneration for work paid until 1 January 2001 shall be reduced by computing the appertaining remuneration for work for every month (until it becomes equal with the remuneration for work established in this Law) by the following formula:

A = C – [(C – B) x M].

Here:

A means the appertaining remuneration for work during the transitional period;

C means the former remuneration for work;

B means the remuneration for work of a state politician, judge or state official established in this Law;

M means the coefficient of recomputation of the remuneration for work, gradually decreasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2001

2002

Half-years

I

II

I

II

M

0.2

0.4

0.65

0.9”

 

2) whose former remuneration for work is smaller than the remuneration for work established in this Law, shall be paid bigger remuneration for work the size of which shall be attained gradually, by computing every month, during the transitional period, the remuneration for work appertaining to a state politician, judge or state official by the following formula:

A = [(B – C) x D] +C.

Here:

A means the appertaining remuneration for work during the transitional period;

B means the remuneration for work established in this Law;

C means the former remuneration for work;

D means the coefficient of recomputation of the remuneration for work, gradually increasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2000

2001

2002

2003

2004

2005

D

0

0.1

0.3

0.5

0.7

0.9”

 

13.3. Paragraph 3 (wording of 27 Mach 2001, established by the Seimas by the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials which was adopted on the same day, by Article 3 whereof Item 1 (wording of 17 October 2000) of Paragraph 3 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials was amended and set forth in a different way) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows:

3. State politicians, judges and state officials,

1) whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months and of the established additional and extra pay of the preceding twelve months (hereinafter referred to as the former remuneration for work) is bigger than the remuneration for work established in this Law shall, upon the entry of this Law into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000. During the established transitional period (from 1 January 2001 till 1 July 2003) the former remuneration for work paid until 1 January 2001 shall be reduced by computing the appertaining remuneration for work for every month (until it becomes equal with the remuneration for work established in this Law) by the following formula:

A = C – [(C – B) x M].

Here:

A means the appertaining remuneration for work during the transitional period;

C means the former remuneration for work;

B means the remuneration for work of a state politician, judge or state official established in this Law;

M means the coefficient of recomputation of the remuneration for work, gradually decreasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2001

2002

2003

Half-years

I

II

I

II

I

M

0

0.4

0.6

0.8

0.9”

 

2) whose former remuneration for work is smaller than the remuneration for work established in this Law, shall be paid bigger remuneration for work the size of which shall be attained gradually, by computing every month, during the transitional period, the remuneration for work appertaining to a state politician, judge or state official by the following formula:

A = [(B – C) x D] +C.

Here:

A means the appertaining remuneration for work during the transitional period;

B means the remuneration for work established in this Law;

C means the former remuneration for work;

D means the coefficient of recomputation of the remuneration for work, gradually increasing the former remuneration for work. The following coefficients of the transitional period shall be established:

 

Years

2000

2001

2002

2003

2004

2005

D

0

0.1

0.3

0.5

0.7

0.9”

 

13.4. Paragraph 4 (wording of 29 August 2000, which was amended by neither the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 17 October 2000, nor the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 27 March 2001) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “the remuneration for work of the judges appointed to the post of a judge during the transitional period is established and computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows: “During the transitional period, the remuneration for work for persons either elected or appointed to the post of a state politician, judge or state official shall be established and computed under the provisions of this Article and aforesaid formulas wherein C means the size of the remuneration for work of persons either elected or appointed to the post of a state politician, judge or state official which was computed under the conditions of remuneration for work that had been in force until this Law went into effect.”

13.5. Paragraph 5 (wording of 29 August 2000, not amended by the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted on 17 October 2000) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows: “As of 1 January 2006, state politicians, judges, state officials must be paid the remuneration for work established in this Law.”

13.6. Paragraph 5 (wording of 27 March 2001, established by the Seimas by the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted on the same day, by Article 2 whereof Paragraph 5 (wording of 29 August 2000) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials was amended and set forth in a different way) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 whereof to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows: “After the transitional period is over, state politicians, judges and state officials must be paid the remuneration for work established in this Law.”

13.7. Paragraph 6 (wording of 29 August 2000, which was amended by neither the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 17 October 2000, nor the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 27 March 2001) of Article 7 titled “The Procedure for the Implementation of this Law” of the Law on the Work Pay of State Politicians, Judges and State Officials, whose provision was, as defined by the Constitutional Court’s ruling of 12 July 2001, “establishing the transitional period”, to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows: “While the remuneration for work is computed for state politicians, judges and state officials during the transitional period, the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Republic of Lithuania’s Law on the State Service shall be applicable.”

13.8. Chapter II titled “Positional Salaries of Judges” of the Appendix (wording of 29 August 2000, which was amended by neither the Law on Amending the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 17 October 2000, nor the Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 27 March 2001) of the Law on the Work Pay of State Politicians, Judges and State Officials, whose provision to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution, was set forth as follows:

(MMS sizes)

 

Title of establishment

Official salary coefficient

of chairperson or his deputy (in cases of absence of a permanent deputy)

of deputy chairperson

of division chairperson

of judge

1.

Constitutional Court of the Republic of Lithuania

17

15.5

2.

Supreme Court of Lithuania

17

15.5

14.5

3.

Court of Appeal of Lithuania

15

13.5

13

4.

Higher Administrative Court

13

11

5.

Regional courts

12

11

10.5

6.

Regional administrative courts

11

10.5

7.

District courts:

 

 

 

 

7.1

in which 15 or more judges are employed

10

9,5

8.5

7.2

in which 14 or less judges are employed

9.5

9

8.5”

 

13.9. Later, when the Constitutional Court’s ruling of 12 July 2001 was already in force, articles (parts thereof), as well as the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials were amended and/or supplemented by: the Republic of Lithuania’s Law on Supplementing Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 18 December 2001; the Republic of Lithuania’s Law on Supplementing Article 3 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 26 March 2002; the Republic of Lithuania’s Law on Amending and Supplementing Articles 2 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials and the Appendix Thereof, which was adopted by the Seimas on 9 April 2002; the Republic of Lithuania’s Law on Amending and Supplementing Articles 2 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials and the Appendix Thereof, which was adopted by the Seimas on 2 July 2002; the Republic of Lithuania’s Law on Amending Articles 2, 3 and 6 of the Law on the Work Pay of State Politicians, Judges and State Officials and the Appendix Thereof, which was adopted by the Seimas on 5 July 2002; the Republic of Lithuania’s Law on Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 10 December 2002; the Republic of Lithuania’s Law on Amending Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, Recognising Paragraph 1 of Article 7 Thereof as No Longer Valid, and Amending the Appendix Thereof, which was adopted by the Seimas on 28 January 2003; the Republic of Lithuania’s Law on Amending and Supplementing Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials and the Appendix Thereof, which was adopted by the Seimas on 25 March 2003; the Republic of Lithuania’s Law on Amending and Supplementing Articles 2 and 3 of the Law on the Work Pay of State Politicians, Judges and State Officials, Supplementing Article 51 to the Law and Amending Appendix III of the Law, which was adopted by the Seimas on 22 April 2003; the Republic of Lithuania’s Law on Supplementing and Amending Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, and Amending and Supplementing the Appendix Thereof, which was adopted by the Seimas on 3 June 2003; the Republic of Lithuania’s Law on Supplementing the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 18 September 2003; the Republic of Lithuania’s Law on Amending Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, and Amending Chapters I and IV of the Appendix Thereof, which was adopted by the Seimas on 18 December 2003; and by the Republic of Lithuania’s Law on Supplementing Chapter I of the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 15 February 2005. Item 1 (wording of 27 March 2001) of Paragraph 3, Paragraph 4 (wording of 29 August 2000), Paragraph 5 (wording of 27 March 2001), Paragraph 6 (wording of 29 August 2000) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials as well as Chapter II titled “Positional Salaries of Judges” (wording of 29 August 2000) of the Appendix of this law, which had been in force until the entry into force of the Constitutional Court’s ruling of 12 July 2001, have not been amended and/or supplemented by the aforesaid laws, except the Law on Amending and Supplementing Articles 2 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 9 April 2002, and the Law on Amending and Supplementing Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, and Amending and Supplementing the Appendix Thereof, which was adopted by the Seimas on 25 March 2003.

13.9.1. By Article 2 of the Law on Amending and Supplementing Articles 2 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 9 April 2002, Paragraph 2 (wording of 29 August 2000; this paragraph, as mentioned before, to the extent that, as it was defined by the Constitutional Court, “the remuneration for work of the judges appointed to the post of a judge during the transitional period is established and computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials was supplemented; Paragraph 2 (wording of 9 April 2002) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials was set forth as follows:

During the transitional period, the remuneration for work for persons either elected or appointed to the post of a state politician (save the mayor and his deputy), judge or state official shall be established and computed under the provisions of this Article and aforesaid formulas wherein C means the size of the remuneration for work of persons either elected or appointed to the post of a state politician, judge or state official which was computed under the conditions of remuneration for work that had been in force until this Law went into effect. In the course of founding a new institution or establishment, in the founding act or the statutes of the founded institution or establishment the founder must specify what terms of remuneration for work, which were valid in respect to similar institutions or establishments until the entry into force of this Law, should be applied during the transitional period.”

13.9.2. By Article 2 of the Law on Amending and Supplementing Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, and Amending and Supplementing the Appendix Thereof, which was adopted by the Seimas on 25 March 2003, Chapter II titled “Positional Salaries of Judges” (wording of 29 August 2000, this chapter, as mentioned before, to the extent that, as it was defined by the Constitutional Court, “it establishes reduction of remuneration for work of the judges whose remuneration for work is bigger than the remuneration for work of judges established in this law”, was ruled by the Constitutional Court’s ruling of 12 July 2001 to be in conflict with the Constitution) of the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials was amended and supplemented; Chapter II titled “Positional Salaries of Judges” (wording of 25 March 2003) of the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials was set forth as follows:

 

(MMS sizes)

 

Title of establishment

Official salary coefficient

of chairperson or his deputy (in cases of absence of a permanent deputy)

of deputy chairperson

of division chairperson

of judge

1.

Constitutional Court of the Republic of Lithuania

17

15.5

2.

Supreme Court of Lithuania

17

15.5

14.5

3.

Supreme Administrative Court of Lithuania

16

14.5

13.75

4.

Court of Appeal of Lithuania

15

13.5

13

5.

Regional courts

12

11

10.5

6.

Regional administrative courts

11

10.5

7.

Local courts:

 

 

 

 

7.1

in which 15 or more judges are employed

10

9,5

8.5

7.2

in which 14 or less judges are employed

9.5

9

8.5”

 

14. It should be held that after the Constitutional Court’s ruling of 12 July 2001 had come into force (whereby certain articles (parts thereof) of the Law on the Work Pay of State Politicians, Judges and State Officials were ruled (to the specified extent) to be in conflict with the Constitution)), there occurred a legal situation, which is treated by various subjects (inter alia, by certain courts as well as self-government institutions of judicial power), without excluding, as mentioned before, the Third Vilnius City Local Court, the petitioner in this constitutional justice case, as a legal gap.

Without even verifying the reasonableness or truth of this assumption and not deciding in this constitutional justice case whether the said legal situation should be regarded as a legal gap, without analysing, separately and particularly, the content of the provisions set forth in the specified articles (parts thereof) and in Chapter II of the Appendix of the Law on the Work Pay of State Politicians, Judges and State Officials, it should be held that:

the legal regulation of the relations concerning remuneration of judges, which was established in the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements), which remained in force after the entry into force of the Constitutional Court’s ruling of 12 July 2001, is not exhaustive (since the explicit provisions of the said law are in force not to the whole extent), not sufficiently defined, it lacks legal clarity and creates pre-conditions for different interpretations of the legal regulation of the said relations and for diverse application of corresponding legal provisions;

therefore, a duty arose for the legislature to correct the legislative regulation of the relations concerning remuneration of judges so that it not only would be in compliance with the Constitution, but also that it would be clear and harmonious, in order that it would not be possible to construe it in a diverse manner and that it would be impossible to apply its provisions in a diverse manner;

although the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) was amended and supplemented many a time, all these amendments and supplements are not related with the execution of the Constitutional Court’s ruling of 12 July 2001, nor the implementation of the provisions (inter alia, the doctrinal ones) of this ruling;

the legal regulation of the relations concerning remuneration of judges has not become clearer (at least, in the aspect pointed out by the petitioner) also after the Law on Amending and Supplementing Articles 2 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, which was adopted by the Seimas on 9 April 2002, and the Law on Amending and Supplementing Article 2 of the Law on the Work Pay of State Politicians, Judges and State Officials, and Amending and Supplementing the Appendix Thereof, which was adopted by the Seimas on 25 March 2003 came into force, which, inter alia, corrected (correspondingly) Paragraph 4 (wording of 29 August 2000) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials and Chapter II titled “Positional Salaries of Judges” of the Appendix (wording of 29 August 2000) of the Law on the Work Pay of State Politicians, Judges and State Officials, which by the Constitutional Court’s ruling of 12 July 2001 were ruled (to the specified extent) to be in conflict with the Constitution, since the said amendments and supplements of Paragraph 4 (wording of 29 August 2000) of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials and Chapter II titled “Positional Salaries of Judges” of the Appendix (wording of 29 August 2000) of the same law, are not related with the execution of the Constitutional Court’s ruling of 12 July 2001, nor the implementation of the provisions (inter alia, the doctrinal ones) of this ruling, either.

15. The legislature, who has the constitutional duty to correct the legal regulation of the relations concerning remuneration of judges so that it would be in compliance with the Constitution, while doing so must pay heed to the official constitutional doctrine formulated in the jurisprudence of the Constitutional Court.

15.1. In its acts, the Constitutional Court has formulated a broad doctrine of judicial power, which encompasses the provisions designed for the legal regulation of the relations concerning remuneration of judges. The concept “remuneration of judges” includes all payments paid to a judge from the State budget (the Constitutional Court’s decision of 12 January 2000). Under the Constitution, remuneration of judges must be established by means of a law, their sizes, as well as the material and social guarantees established to judges, must be such so that they would be in line with the constitutional status of the judge and his dignity, the remuneration of judges, the material and social guarantees established to them may be differentiated according to clear criteria, which are known ex ante and which are not related with administration of justice when cases are decided (for example, according to the length of time during which the person works as a judge), the remuneration of the judge may not depend upon the results of his work. It should be noted that, as the Constitutional Court has emphasised in its rulings more than once, the Constitution prohibits the reduction of remuneration and other social guarantees of judges; any attempts to reduce the remuneration of the judge or his other social guarantees, or limitation on the financing of courts are treated as an encroachment upon the independence of judges and courts (the Constitutional Court’s rulings of 6 December 1995 and 21 December 1999, its decision of 12 January 2000, and its rulings of 12 July 2001 and 28 March 2006).

15.2. In this context, it needs to be 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. While construing Paragraph 4 of Article 111 of the Constitution, the Constitutional Court held in its rulings of 28 March 2006 and 9 May 2006, 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 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” and also that “such constitutional legal regulation does not mean in itself that certain relations related to the said relations may not be regulated by other laws as well”; this imperative of the legal regulation regarding the legal regulation of courts of general jurisdiction, which arises from the Constitution, should also be applied mutatis mutandis to the legal regulation regarding the legal regulation of specialised courts established under Paragraph 2 of Article 111 of the Constitution (the Constitutional Court’s ruling of 28 March 2006). In the de lege ferenda aspect, it should be emphasised that judges, in view of their office, may not be regarded as state servants (or functionaries) (inter alia, due to the fact that it is not permitted to demand that they implement a certain policy) (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999, and 9 May 2006); differently from other state servants, judges and courts (the Judiciary), while administering justice, also execute state power (Paragraph 1 of Article 5 of the Constitution), which, by the way, is the only among the branches of state power which is formed not on a political, but professional basis (the Constitutional Court’s rulings of 21 December 1999 and 12 July 2001, its conclusion of 31 March 2004, its rulings of 28 March 2006, 9 May 2006, and 6 June 2006). Thus, actually, the legal regulation whereby the relations of remuneration of judges of all courts specified in Paragraph 1 of Article 111 of the Constitution and of the specialised courts established under Paragraph 2 of Article 111 of the Constitution would be established precisely in the Law on Courts (which, as mentioned before, is expressis verbis specified in Paragraph 4 of Article 111 of the Constitution) would be in compliance with the Constitution.

It also needs to be mentioned that, under Paragraph 2 of Article 102 of the Constitution, the status of the Constitutional Court and the procedure for the execution of its powers shall be established by the Law on the Constitutional Court. On the basis of the arguments analogous to those that the relations of remuneration of judges of all courts specified in Paragraph 1 of Article 111 of the Constitution and of the specialised courts established under Paragraph 2 of Article 111 of the Constitution should be established precisely in the Law on Courts, the relations of the remuneration of justices of the Constitutional Court should be regulated in the Law on the Constitutional Court.

15.3. It also needs to be mentioned that, as the Constitutional Court held in its ruling of 12 July 2001, under Paragraph 1 of Article 113 of the Constitution, the salaries received by judges are referred to by the notion “remuneration of judges”, however, in the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements), by comparing judges with state politicians and other state officials, a different notion is employed—“remuneration for work of judges”; such an imprecise use of the notion in the law may be treated as one of the preconditions for denying the specific character and protection of salaries of judges enshrined in the Constitution; the legislature is obligated in the law to refer to the remuneration received by judges by employing the notion “remuneration of judges” pointed out in the Constitution.

16. It is clear that the time period during which the legislative regulation had to be regulated so that it would be in compliance with the Constitution (inter alia, its official construction presented in the Constitutional Court’s ruling of 12 July 2001) has become too long. This (although, of course, not only this) creates pre-conditions for the occurrence of instability in the professional corps of judges and in the court system, and, ultimately, it creates pre-conditions for the decreasing of public trust in the judicial power.

It needs to be especially emphasised that the legal situation determined by the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) which, as mentioned before, is treated as a legal gap by courts and judicial self-government institutions themselves, prompted the judicial self-government institutions to take also such steps (to adopt law-making decisions), which, doubtless to say, should be assessed critically (it needs to be noted that the corresponding legal acts are not, nor can they be the matter of investigation (in the aspect of their compliance with legal acts of higher legal force, inter alia, the Constitution) in the constitutional justice case at issue).

For example, it is clear from the case material that at present, when remuneration of judges is computed, one is following not only the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements), but also legal acts of lower legal force, which have been issued by institutions of the executive, inter alia, the Government Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997, the Government Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997 (with subsequent amendments made, inter alia, by the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999) as well as the Order of the Minister of Justice (No. 370) “On Additional Pay Supplementing Service Remuneration” of 23 December 1999. It needs to be noted that the said order of the Minister of Justice has not even been published in the official gazette “Valstybės žinios”, thus, legally it does not exist and may not be applied under any circumstances; it also needs to be mentioned that it is established in Item 2 of the aforesaid order of the Minister of Justice that it shall become no longer valid “upon the entry into force of the Republic of Lithuania’s Law on Remuneration for Work of Judges”, however, no law with such title was ever adopted, besides (if, with reservation concerning its title, the Law on the Work Pay of State Politicians, Judges and State Officials which was adopted by the Seimas on 29 August 2000 is regarded as being such a law), no order of the Minister of Justice was ever issued, whereby, as provided in the Order of the Minister of Justice (No. 370) “On Additional Pay Supplementing Service Remuneration” of 23 December 1999, this order of the Minister of Justice would be recognised as no longer valid due to the fact that a law regulating remuneration of judges came into force, or due to some other reasons.

It needs to be noted that also the Council of Courts (which, by the way, was formed under Paragraphs 2 and 5 of Article 119 of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) that were ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 9 May 2006) itself adopted decisions, which regulated the calculation of the size of remuneration of judges and its payment, namely: the Decision of the Council of Courts (No. 84) “On Assenting to a Conclusion of Justices of the Civil Cases Division of the Supreme Court of Lithuania” of 7 March 2003 (whereby one assented, inter alia, to the Conclusion “On Paying Extra Pay to Judges for the Time Served” made at the 14 February 2003 meeting of justices of the Civil Cases Division of the Supreme Court of Lithuania (Item 1) and commissioned “all Presidents of courts and the National Administration of Courts to take measures in order to ensure the financing of courts, creating the conditions for paying extra pay to judges for the time served” (Item 3)); the Decision of the Council of Courts (No. 113) “On Assenting to an Additional Conclusion of Justices of the Civil Cases Division of the Supreme Court of Lithuania” of 6 June 2003 (whereby one assented, inter alia, to the Conclusion “On Paying Extra Pays to Judges for the Time Served” made at the 24 April 2003 meeting of justices of the Civil Cases Division of the Supreme Court of Lithuania). Both said decisions of the Council of Courts have not been published in the official gazette “Valstybės žinios”; in addition, they are based on the general character provision that the Council of Courts “shall decide other issues of activities of courts, which are provided for in laws” which is established in Item 20 of Article 120 (wording of 21 January 2003) of the Law on Courts.

Even without analysing separate provisions consolidated in the aforesaid legal acts, without their assessment as regards the compliance with the legal regulation established in the Constitution and laws, it should be held that the overall legal regulation regarding the relations of remuneration of judges is completely irregular and chaotic. The situation should be corrected without delay; the legislative regulation must be corrected so that it would be in compliance not only with the Constitution and would be completely clear and harmonious (so that it would be impossible to interpret it in diverse manner, nor to apply it in diverse manner), but also that it would not induce, inter alia, self-governance institutions of judicial power to decide, by means of decisions (or other acts), which are of a questionable legal nature (especially with regard to the law-making subject and law-making procedure) and of a questionable legal force, the questions which, under the Constitution, are only within the competence of the legislature—the Seimas.

17. As mentioned before, in the opinion of the Third Vilnius City Local Court, the petitioner in this constitutional justice case, after the Constitutional Court’s ruling of 12 July 2001 had come into force, by which corresponding provisions of the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) were ruled to be in conflict with the Constitution, there occurred a legal gap in the legal regulation of the relations of remuneration of judges, which enables, when questions of establishment of the size of salaries of judges are decided, state institutions and officials (inter alia, Presidents of courts) to make judges and courts dependent on outside forces (inter alia, politicians), and to exert influence on them.

Without deciding whether the stated in this decision of the Constitutional Court incomprehensiveness, insufficient certainty, and lack of legal clarity of the legal regulation of relations of remuneration of judges which is established in the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) and which remained in force after the Constitutional Court’s ruling of 12 July 2001 had come into force, which create preconditions for different interpretations of the legal regulation of the said relations and to apply the corresponding legal provisions in a diverse manner, can be regarded as a legal gap, it should be held that the incomprehensiveness, insufficient certainty, and lack of legal clarity of the legal regulation of relations of remuneration of judges which is established in the said law (upon the entry into force of the Constitutional Court’s ruling of 12 July 2001) is one of the features of the overall legal regulation regarding the relations of remuneration of judges that is discussed in this decision of the Constitutional Court. It should also be held that regardless of whether the said incomprehensiveness, insufficient certainty, and lack of legal clarity of the legal regulation should be regarded as a legal gap or as shortcomings of different nature, such legal situation occurred precisely because of the fact that the legislature has not carried out his constitutional duty and did not correct the legislative regulation of remuneration of judges so that it would be in compliance with the Constitution (inter alia, its official construction presented in the Constitutional Court’s ruling of 12 July 2001), that it would be completely clear and harmonious (so that it would be impossible to interpret it in diverse manner, nor to apply it in diverse manner) but also that it would not induce, inter alia, self-governance institutions of judicial power to decide the questions which, under the Constitution, are only within the competence of the legislature—the Seimas.

18. It has been held in this decision of the Constitutional Court that if a legal gap occurred because the Constitutional Court recognised that certain legal regulation established in a legal act (part thereof) of lower legal force is in conflict with the Constitution or other legal act of higher legal force, there are no grounds to hold that there is legislative omission, whose compliance with a legal act of higher legal force (inter alia, the Constitution) could be investigated by the Constitutional Court; an assumption that, purportedly, the Constitutional Court may or must investigate also such legal gaps or other indeterminacies, which occurred after by its ruling the Constitutional Court itself recognised that that a certain legal act (part thereof) is in conflict with a legal act of higher legal force, inter alia, the Constitution, would mean that the Constitutional Court, while acting within its constitutional competence, by the said ruling created the legal situation (i.e. that it virtually created new legal regulation instead of that ruled in conflict with a legal act of higher legal force, inter alia, the Constitution), which is incompatible with the Constitution or other legal act of higher legal force; such construction of the Constitutional Court’s powers to recognise, by its ruling, that legal gaps are in conflict with the Constitution, would in essence distort and even deny the essence and meaning of constitutional review and constitutional justice as well as the concept of the constitutional legal effects of acts of the Constitutional Court. It has also been mentioned that, under the Constitution, the Constitutional Court enjoys no powers to investigate non-adoption of law-making decisions by state institutions (the compliance of legal acts passed by which with legal acts of higher legal force is investigated by the Constitutional Court), nor avoidance or delay to adopt such decisions, as well as failure to act, which is determined by other motives, even though in the legal system there occur gaps or other indeterminacies due to such failure to act, also, that the subjects pointed out in the Constitution cannot impugn the avoidance and delay to adopt such law-making decisions or failure to act, which is determined by other motives, due to which corresponding legal acts have not been passed, including those which have to be passed so that, by taking account of acts of the Constitutional Court, one would establish the legal regulation that would be in compliance with the Constitution or other legal acts of higher legal force.

It has also been held in this decision of the Constitutional Court that by its ruling the Constitutional Court can rule a legal gap, inter alia, legislative omission, to be in conflict with legal acts of higher legal force, inter alia, the Constitution only in cases when due to the fact that certain legal regulation is not established in precisely the investigated laws or other legal acts (precisely in the investigated parts thereof), the principles and/or norms of the Constitution, the provisions of other legal acts of higher legal force might be violated; however, in the cases when the law or other legal act (part thereof), which is impugned by the petitioner and which is investigated by the Constitutional Court, does not establish certain legal regulation which, under the Constitution (and if a substatutory act (part thereof) of the Seimas, and act (part thereof) of the President of the Republic or the Government is impugned—also under the laws) need not be established precisely in the impugned legal act (precisely in that part thereof), the Constitutional Court holds that a matter of investigation is absent in the case on the petition of the petitioner—this is the basis to dismiss the instituted legal proceedings or to dismiss the case.

19. As mentioned before, after the Constitutional Court’s ruling of 12 July 2001 had come into force, a great many amendments to articles (parts thereof) of the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) as well as a great many of amendments and supplements of the Appendix of the same law were made, but which were not related with the execution of the Constitutional Court’s ruling of 12 July 2001, nor with the implementation of the provisions (inter alia, doctrinal ones) of the said ruling. All the laws by which these amendments and supplements were made are not designed to regulate the relations linked with the restoration of the size of remuneration of judges (which had been reduced by the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) and by any other legal act) etc.

Thus, there are no grounds to hold that, even though the incomprehensiveness, insufficient certainty, and lack of legal clarity of the legal regulation of relations of remuneration of judges which is in the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements), which create preconditions for different interpretations of the legal regulation of the said relations and to apply the corresponding legal provisions in a diverse manner, could be regarded as a legal gap, it is legislative omission or other legal gap, the investigation of which (and, possibly, the statement that it is anti-constitutional), according to the Constitution (inter alia, under Paragraphs 1 and 2 of Article 105 and Paragraph 1 of Article 107 thereof), falls under the competence of the Constitutional Court.

20. Alongside, it needs to be held that in the part of the case regarding the request of the petitioner to investigate whether the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, there is no matter of investigation. Thus, the fact that the matter of investigation is absent in the petition of the petitioner means that the petition does not fall under the jurisdiction of the Constitutional Court.

Under Item 2 of Paragraph 1 of Article 69 of the Constitution, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

21. Taking account of the arguments set forth, it needs to be held that there are grounds to refuse to consider the request of the petitioner to investigate whether the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law. In this part of the case the legal proceedings must be dismissed.

22. Alongside, it needs to be noted that the fact that the legal proceedings in the part of the case regarding the request of the petitioner to investigate whether the Law on the Work Pay of State Politicians, Judges and State Officials to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 12 July 2001 is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 of Article 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law are dismissed by this decision of the Constitutional Court, it does not mean that the legislature, purportedly, no longer has a duty to correct the legislative regulation of the relations of remuneration of judges so that it would be in compliance with the Constitution (inter alia, its official construction presented in the Constitutional Court’s ruling of 12 July 2001), that it would be completely clear and harmonious (so that it would be impossible to interpret it in diverse manner, nor to apply it in diverse manner) but also that it would not induce, inter alia, self-governance institutions of judicial power to decide the questions which, under the Constitution, are only within the competence of the legislature—the Seimas. The said constitutional duty of the legislature will not disappear until it is properly carried out.

It should also be noted that until the legislature has not carried out its said constitutional duty, the persons who think that their rights or freedoms are violated by the legal regulation of the relations of remuneration of judges established in the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements) precisely because the legislature has not carried out its said constitutional duty, have the right to apply to court also due to such violations, while the courts who correspondingly consider such cases within their competence must, under the Constitution, provided they establish that the rights or freedoms of the person have been violated by this law because of the reason specified above, ensure the judicial defence of the violated rights or freedoms, by applying not only the law (in the general meaning of this notion), but also, inter alia, the general principles of law, as well as legal acts of higher legal force, and, first of all, the supreme law—the Constitution—as well as the principles of justice, legal certainty and legal security, proportionality, due process of law, equal rights of persons and protection of legitimate expectations, which are entrenched in the Constitution as well as other provisions thereof. Such ad hoc overcoming of the shortcomings of the overall legal regulation of the relations of remuneration of judges in the course of consideration of cases by courts is a necessary precondition for ensuring the protection of the rights of freedoms of the person who applied to the court for protection of his violated rights or freedoms, in corresponding individual social relations until the legislature carries out its constitutional duty and corrects the legislative regulation of the relations of remuneration of judges so that it would be in compliance with the Constitution, that it would be completely clear and harmonious, so that it would be impossible to interpret it in diverse manner, nor to apply it in diverse manner, but also that it would not induce, inter alia, self-governance institutions of judicial power to decide the questions which, under the Constitution, are only within the competence of the legislature—the Seimas.

III

1. The petitioner, inter alia, requests an investigation into whether Item 1 of the Government Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997 is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 and Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

2. The Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 provides:

Taking account of the complex economic and financial situation, the Government of the Republic of Lithuania shall resolve:

1. To partially amend the Government of the Republic of Lithuania Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997 (Official Gazette Valstybės žinios, 1997, No. 64-1511; 1999, No. 73-2257) and in the first section to enter the words ‘1.75 times’ instead of the words ‘2.5 times’.

2. To stipulate that as of 1 January 2000 the official remuneration shall be calculated by applying the coefficient specified in Item 1 of this Resolution.”

3. The compliance of the government resolution of 28 December 1999 with the Constitution was impugned in the constitutional justice case in which the Constitutional Court’s ruling of 12 July 2001 was adopted. It was held in that ruling of the Constitutional Court, inter alia, that: on 29 August 2000, the Seimas enacted the Law on the Work Pay of State Politicians, Judges and State Officials whereby salaries of judges were established; after this law had gone into effect, the commissioning for the Government to establish salaries of judges, which had been provided for by the 3 February 1993 Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania”, became null and void; the Law on the Work Pay of State Politicians, Judges and State Officials regulated the relations of judges’ salaries differently from the government resolutions, therefore, the legal regulation established in the government resolution of 28 December 1999 (as well as that established by the Government Resolution (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” of 29 November 1991 and the Government Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997) was no longer in force; this served as the grounds to dismiss the instituted legal proceedings on the compliance of the government resolution of 28 December 1999 with the Constitution. By the Constitutional Court’s ruling of 12 July 2001 the legal proceedings concerning the compliance of the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 with the Constitution were dismissed.

The Constitutional Court’s ruling of 12 July 2001 is still in force.

4. It needs to be noted that although the provision of the Constitutional Court’s ruling of 12 July 2001 that the legal regulation established by the government resolution of 28 December 1999 is no longer in force (inter alia, the formula “the legal regulation is no longer in force” itself) is not precise, the fact that upon the entry into force of the Law on the Work Pay of State Politicians, Judges and State Officials adopted by the Seimas on 29 August 2000 whereby remuneration of judges was established, the commissioning for the Government to establish salaries of judges, which had been provided for by the 3 February 1993 Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania”, became null and void, is beyond doubt, still that, according to the Constitution, the remuneration of judges should be established by means of a law by heeding the independence of judges and courts entrenched in the Constitution. The said provision of the Constitutional Court’s ruling of 12 July 2001 should be construed as meaning that upon the entry into force of the Law on the Work Pay of State Politicians, Judges and State Officials adopted by the Seimas on 29 August 2000, the legal regulation established by the government resolution of 28 December 1999 may no longer be applied to any relations, which occurred after the entry into force of the said law. It is from this aspect that at the time when the Constitutional Court’s ruling of 12 July 2001 was being adopted, the legal regulation established by the government resolution of 28 December 1999 had already been removed from the legal system, thus (though one describes it in a not completely precise manner), in this respect the validity of the said government resolution had already been over, although, from the formal point of view, this government resolution has not been recognised as no longer valid even until today.

5. Under Paragraph 2 of Article 107 of the Constitution, the decisions of the Constitutional Court on issues within its competence according to the Constitution shall be final and not subject to appeal.

While construing Paragraph 2 (inter alia, relating it with Paragraph 1 of Article 105, Paragraph 1 of Article 107 and Paragraph 4 of Article 109 of the Constitution) of Article 107 of the Constitution, in its ruling of 28 March 2006, the Constitutional Court held, inter alia, that: the notion “decisions” used in Paragraph 2 of Article 107 of the Constitution is a general one and this means that the Constitutional Court implements the competence assigned to it by the Constitution and expresses its will, i.e. adopts a final act of the Constitutional Court; final acts of the Constitutional Court are also its such legal acts by which a constitutional justice case is considered in essence as well as such which are adopted without investigating the compliance of the impugned legal act (part thereof) with the Constitution (other legal act of higher legal force) in essence, but by properly (clearly and rationally) refusing by a reasoned decision to consider the petition or by dismissing the instituted legal proceedings (if the corresponding petition was received at the Constitutional Court and the preparation of the constitutional justice case for the Constitutional Court’s hearing was begun) or by dismissing the case (if the constitutional justice case has already been considered at the Constitutional Court’s hearing).

6. It is maintained in the petitioner of the petitioner that the provision “shall be grounds to adopt a decision to dismiss the instituted legal proceedings” of Paragraph 4 of Article 69 of the Law on the Constitutional Court means that the Constitutional Court has the right, when it takes account of the circumstances of the considered case, to dismiss the instituted legal proceedings, but not that it must dismiss the instituted legal proceedings every time when the impugned legal acts is annulled; when the Constitutional Court is addressed by a court, which considers a case, the Constitutional Court has a duty to consider the petition of the court regardless of whether the impugned legal act is in force or not; thus, the petition of the court-petitioner on the constitutionality of a legal act, which is applicable in a concrete case, must be considered in the Constitutional Court even though the impugned legal act is no longer in force. While interpreting the jurisprudence of the Constitutional Court (inter alia, the doctrinal provisions of its rulings of 5 April 2000 and 21 August 2002), the petitioner relates Paragraph 4 of Article 69 of the Law on the Constitutional Court with Item 3 of Paragraph 1 of the same article, under which, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force; in the opinion of the petitioner, a decision to refuse to accept a petition on the compliance of a legal act with the Constitution may be adopted only when the issue of the constitutionality of the legal act has been investigated in essence, while in cases when a court, which considers a case, applies to the Constitutional Court, in which the said legal act must be applied, the Constitutional Court must investigate the issue in essence, even though it previously dismissed the legal proceedings on the constitutionality of this legal act. Thus, in the opinion of the petitioner, due to the fact that the compliance of the government resolution of 28 December 1999 was not investigated in essence in the constitutional justice case wherein the Constitutional Court’s ruling of 12 July 2001 was adopted, there are grounds to investigate the compliance of the said government resolution with the Constitution in this constitutional justice case.

7. In its acts the Constitutional Court has held more than once that, while investigating the compliance of laws and other legal acts with the Constitution, the Constitutional Court develops the concept of the provisions of the Constitution which were presented in its previous rulings and other acts, it discloses new aspects of the legal regulation established in the Constitution, which are necessary for investigation in a corresponding constitutional justice case (the Constitutional Court’s rulings of 30 May 2003, 1 July 2004, 13 December 2004, 14 March 2006, and 28 March 2006). The development of the constitutional jurisprudence and the official doctrine formulated therein (especially at the beginning of the Constitutional Court’s activity, when there is no formed official constitutional doctrine regarding most provisions of the Constitution) 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 Constitutional Court’s rulings of 28 March 2006 and 9 May 2006). In the Constitutional Court’s ruling of 28 March 2006 it is held, inter alia, that: in general, it is not impossible that at certain time (particularly at the beginning of the Constitutional Court’s activity) there were also such official constitutional doctrinal provisions (fragments or rudiments of the doctrine) in the jurisprudence of the Constitutional Court, which, if compared with each other, but if assessed in isolation from the entire official constitutional doctrinal context (particularly, when a more detailed, broader official constitutional doctrine has not been formed in the corresponding issue of the constitutional legal regulation) and/or from the general principles of law, they might be regarded as competing ones; if the text of the Constitution does not change, if it remains stable (i.e. if corresponding amendments of the Constitution are not made), the said real or alleged competition of these official constitutional doctrinal provisions is removed by further (inter alia, systemic) construction and development (in new constitutional justice cases) of the conception of the provisions of the Constitution and the official constitutional doctrinal provisions formulated on the basis of these provisions; the conceptions of the provisions of the Constitution and further construction and development of the official constitutional doctrinal provisions formulated on the basis of the said provisions in the acts of the Constitutional Court adopted in new constitutional justice cases under certain circumstances may imply reinterpretation of the official constitutional doctrinal provisions formulated previously when the official constitutional doctrine is corrected; such reinterpretation of the conception of the provisions of the Constitution and official constitutional doctrinal provisions when the official constitutional doctrine is corrected is an exclusive competence of the Constitutional Court; it may be possible to deviate from the Constitutional Court precedents created while adopting decisions in cases of constitutional justice and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and reasoned, i.e. when it is necessary while seeking to increase opportunities to implement the innate and acquired rights and legitimate interests of persons; the necessity to better defend and protect the values enshrined in the Constitution, the need to create better conditions in order to reach the aims of the Lithuanian Nation declared in the Constitution on which the Constitution itself is based, the necessity to expand the possibilities of the constitutional control in this country in order to guarantee constitutional justice and to ensure that no legal act (part thereof) which is in conflict with legal acts of higher legal force, would have the immunity from being removed from the legal system; it is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, their compatibility is denied, the protection guarantees of the supremacy of the Constitution in the legal system are reduced, the concept of the Constitution as a single act and harmonious system is denied, the guarantees of rights and freedoms of the person entrenched in the Constitution are reduced and the model of the separation of powers enshrined in the Constitution is changed; every case of reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court.

8. It was also held in the Constitutional Court’s ruling of 28 March 2006 that the construction of the provision “the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings” of Paragraph 4 (wording of 11 July 1996) of Article 69 of the Law on the Constitutional Court has gradually developed in the Constitutional Court jurisprudence, whereby in cases when the Constitutional Court is not applied by courts but by the other subjects specified in Article 106 of the Constitution and when the impugned legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired—the Constitutional Court, while paying heed to the circumstances of the considered case, has the powers to dismiss the instituted legal proceedings, however, it does not have to dismiss the instituted legal proceedings in every case when the impugned legal act (part thereof) is no longer valid—it has been recognised as no longer valid (it was abolished or amended) or its validity expired—and that the Constitutional Court has the duty, when it is applied by a court, which considers a case and which had doubts on the compliance of a law applicable in that case with the Constitution (other legal act of higher legal force), to consider the petition of the court irrespective of whether the impugned law or other legal act is valid or not; by some decisions adopted at the beginning of the Constitutional Court’s activity and a bit later the instituted legal proceedings used to be dismissed also in such constitutional justice cases, in which, subsequent to the petitions of the petitioners, one investigated the compliance with the Constitution (other legal acts of higher legal force) of such legal acts (parts thereof) of lower legal force, which, even though formally were valid when the corresponding constitutional justice cases were investigated—formally they had not been recognised as no longer valid (they had not been abolished nor amended), nor their validity had been formally terminated, however, at that moment they could no longer be applied because one had to apply certain legal acts (parts thereof) that were passed later and/or those of higher legal force, which regulated the corresponding relations differently than the impugned legal acts (parts thereof); in this aspect, the impugned legal acts (parts thereof) which at the time when the constitutional justice cases were investigated could no longer be applied because one had to apply the legal acts (parts thereof) that were passed later and/or those of higher legal force, which regulated the corresponding relations differently than the said impugned legal acts (parts thereof), in the jurisprudence of the Constitutional Court were compared to no longer valid legal acts (parts thereof); on the other hand, at the discussed time there were also such constitutional justice cases, in which one investigated and decided whether the legal acts (parts thereof) of lower legal force which were not valid at the time when the corresponding constitutional justice case was investigated or which, even though were formally valid when the corresponding constitutional justice case was investigated, at that moment they could no longer be applied because one had to apply the legal acts (parts thereof) that were passed later and/or those of higher legal force, which regulated the corresponding relations differently than the impugned legal acts (parts thereof), were not in conflict with the Constitution (other legal acts of higher legal force)—in these constitutional justice cases, while taking account of various circumstances of the case, corresponding rulings were adopted, by which the cases were decided in essence. Thus, as it was held in summary in the Constitutional Court’s ruling of 28 March 2006, the official doctrine of acceptability of petitions at the Constitutional Court in the jurisprudence of the Constitutional Court was not finally formulated for some time; this doctrine was formulated “case by case” in two directions: on the one hand, there was a prevailing conception of the Constitutional Court’s powers that the Constitutional Court has the powers to investigate only the compliance of valid legal acts of lower legal force only with valid legal acts of higher legal force (inter alia (and, first of all), with the Constitution) and that it does not investigate whether the legal acts that are no longer valid, or the ones compared to such are not in conflict with the Constitution (other legal acts of higher legal force); on the other hand (more seldom), one investigated and decided whether the legal acts (parts thereof) of lower legal force, which were not valid when the corresponding constitutional justice case was investigated or which even though were formally valid when the corresponding constitutional justice case was investigated, at that moment they could no longer be applied because one had to apply the legal acts (parts thereof) that were passed later and/or those of higher legal force, which regulated the corresponding relations differently than the impugned legal acts (parts thereof), were not in conflict with the Constitution (other legal acts of higher legal force).

It was also held in the Constitutional Court’s ruling of 28 March 2006 that one began to harmonise the two directions of the formation of the official constitutional doctrine on the acceptance of applications at the Constitutional Court which came into being gradually, after the subjects specified in Article 106 of the Constitution that have the powers to apply to the Constitutional Court were differentiated: in the official constitutional doctrine a provision was eventually entrenched that in the cases when the Constitutional Court is applied by courts, when, in the course of administration of justice they had doubts on the compliance of legal acts of lower legal force with legal acts of higher legal force, inter alia (and, first of all), with the Constitution, under the Law on the Constitutional Court (inter alia, Paragraph 4 (wording of 11 July 1996) of Article 69) the Constitutional Court does not have the powers to dismiss the instituted legal proceedings (case) and must consider the case, and when the Constitutional Court is applied by other subjects specified in Article 106 of the Constitution, the Constitutional Court may, while taking account of the circumstances of the considered constitutional justice case, either dismiss the instituted legal proceedings (case) or not dismiss it.

9. In the context of the constitutional justice case at issue, it should be noted that, as the Constitutional Court held in its ruling of 28 March 2006, “in itself no development of the official constitutional doctrine (inter alia, the reinterpretation of the official constitutional doctrinal provisions when the official constitutional doctrine is corrected) is the grounds for the subjects specified in Article 106 of the Constitution to apply to the Constitutional Court anew with a petition requesting an investigation into whether the law (part thereof) whose compliance with the Constitution (other legal act of higher legal force) has already been investigated in essence, is not in conflict with the Constitution (other legal act of higher legal force), or with a petition, which is analogous to the petition previously presented by some subject, requesting an investigation into whether the legal act (part thereof) on which the Constitutional Court has already passed a decision to refuse to consider the petition or a decision (ruling) to dismiss the instituted legal proceedings (case), if the corresponding petition had been received at the Constitutional Court and the preparation of the constitutional justice case for the Constitutional Court’s hearing had begun or it had already been considered at the Constitutional Court’s hearing, thus, it did not decide the corresponding question in essence, is not in conflict with the Constitution (other legal act of higher legal force)”.

These doctrinal provisions should be applied when Paragraph 4 of Article 69 of the Law on the Constitutional Court is construed.

10. It also needs to be noted that, as the Constitutional Court held in its ruling of 28 March 2006, under the Constitution, the Constitutional Court has the powers to revise its rulings, conclusions, and decisions when they were adopted while the Constitutional Court did not know about such essential circumstances which, if had been known, would have been able to determine a different content of the adopted rulings, conclusions and decisions.

It must be noted that at present the Constitutional Court is not aware of any such circumstances related with the government resolution of 28 December 1999, which were not known at the time of the adoption of the Constitutional Court’s ruling of 12 July 2001, which, if had been known, would have been able to determine a different content of the said ruling of the Constitutional Court.

In addition, the petition of the Third Vilnius City Local Court, the petitioner, requesting an investigation into whether Item 1 of the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, does not specify any such circumstances, either.

11. Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force.

12. Having held that the compliance of the government resolution of 28 December 1999, which is impugned by the petitioner, with the Constitution has already been investigated in the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force, it should also be held that there are grounds to refuse to consider the petition of the petitioner requesting an investigation into whether Item 1 of the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 as well as Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law. The legal proceedings in this part of the case must be dismissed.

Conforming to Articles 102 and 107 of the Constitution of the Republic of Lithuania and Paragraphs 3 and 4 of Article 22, Article 28 and Items 2 and 3 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To dismiss the legal proceedings in the case regarding the petition of the Third Vilnius City Local Court, the petitioner, requesting an investigation into whether Paragraph 3 (wording of 24 January 2002; Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 11 of the Republic of Lithuania’s Law on Courts is not in conflict with Paragraph 2 of Article 5, Paragraphs 2 and 3 of Article 109, 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, whether the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000 with subsequent amendments and supplements; Official Gazette Valstybės žinios, 2000, No. 75-2271; 2000, No. 92-2887; 2001, No. 29-918; 2001, No. 43-1492; 2001, No. 48-1661, correction 2001, No. 49; 2002, No. 43-1606; 2003, No. 35-1464) to the extent that, according to the petitioner, it does not establish any legal regulation of remuneration of judges replacing the legal regulation which was ruled to be in conflict with the Constitution of the Republic of Lithuania by the Constitutional Court’s Ruling “On the Compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the Same Law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) ‘On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies’ of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) ‘On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania’ of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) ‘On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997’ of 28 December 1999 with the Constitution of the Republic of Lithuania” of 12 July 2001 (Official Gazette Valstybės žinios, 2001, No. 62-2276; 2001, No. 86) is not in conflict with Article 5, Paragraph 1 of Article 30, Paragraphs 2 and 3 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, and whether Item 1 (Official Gazette Valstybės žinios, 1999, No. 114-3314) of the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997” of 28 December 1999 is not in conflict with the provision of Article 1 that the State of Lithuania shall be an independent democratic republic, Articles 5 and 109 as well as 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.

Justices of the Constitutional Court:          Armanas Abramavičius

                                                                               Toma Birmontienė

                                                                               Egidijus Kūris

                                                                               Kęstutis Lapinskas

                                                                               Zenonas Namavičius

                                                                               Ramutė Ruškytė

                                                                               Vytautas Sinkevičius

                                                                               Stasys Stačiokas

                                                                               Romualdas Kęstutis Urbaitis