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On the right of judges to apply to court

Case No. 10/04-12/04-18/04A

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 8 (WORDING OF 24 JANUARY 2002) OF ARTICLE 90 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

27 November 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

Gediminas Sagatys, senior advisor of the Legal Division of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 22 November 2006, considered case No. 10/04-12/04-18/04A subsequent to the petitions Nos. 1B-09, 1B-11, and 1B-19 of the Vilnius Regional Court, the petitioner, requesting an investigation, inter alia, into whether Paragraph 8 of Article 90 of the Republic of Lithuania’s Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania and with the principle of a state under the rule of law which, according to the petitioner, is entrenched in the Preamble to the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. The Vilnius Regional Court, the petitioner, was considering certain civil cases.

1.1. By its ruling (petition No. 1B-08), the said court applied to the Constitutional Court with the petition requesting an investigation into whether the Decree of the President of the Republic (No. 164) “On Releasing Judges of Local Courts and Presidents of Courts from Office” of 22 July 2003, to the extent that it prescribes that Darius Japertas is released from the office of a judge of the Panevėžys Local Court as well as from the office of the president of the same court is not in conflict, as to its content and under the procedure of the adoption established in the Constitution, with the principles of a just civil society and state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution, with Paragraph 1 of Article 29 of the Constitution, wherein the principle of equality of all persons before the law is entrenched, with Article 115, wherein it is prescribed that judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law, as well as with Articles 83, 84 and 86 and Paragraphs 6 and 7 of Article 90 of the Law on Courts, wherein the issues of disciplinary liability of judges are regulated and which establish the procedure for their release from office and whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the principle of a state under the rule of law which, according to the petitioner, is entrenched in the Preamble to the Constitution.

1.2. By its ruling (petition No. 1B-11), the said court applied to the Constitutional Court with the petition requesting an investigation into whether the Decree of the President of the Republic (No. 164) “On Releasing Judges of Local Courts and Presidents of Courts from Office” of 22 July 2003, to the extent that it prescribes that Arvydas Gudas is released from the office of a judge of the Lazdijai Local District Court as well as from the office of the president of the same court is not in conflict, as to its content and under the procedure of the adoption established in the Constitution, with the principles of a just civil society and state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution, with Paragraph 1 of Article 29 of the Constitution, wherein the principle of equality of all persons before the law is entrenched, with Article 115 of the Constitution, wherein it is prescribed that Judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law, as well as with Articles 83, 84 and 86 and Paragraphs 6 and 7 of Article 90 of the Law on Courts, wherein the issues of disciplinary liability of judges are regulated and which establish the procedure for their release from office and whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the principle of a state under the rule of law which, according to the petitioner, is entrenched in the Preamble to the Constitution.

1.3. By its ruling (petition No. 1B-19), the said court applied to the Constitutional Court with the petition requesting an investigation into whether the Decree of the President of the Republic (No. 164) “On Releasing Judges of Local Courts and Presidents of Courts from Office” of 22 July 2003, to the extent that it prescribes that Palmira Linkevičienė is released from the office of a judge of the Biržai Local District Court as well as from the office of the president of the same court is not in conflict, as to its content and under the procedure of the adoption established in the Constitution, with the principles of a just civil society and state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution, with Paragraph 1 of Article 29 and Paragraph 1 of Article 31 of the Constitution, Paragraph 2 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, with Article 115 of the Constitution, with Articles 83, 84 and 86 and Paragraphs 6 and 7 of Article 90 of the Law on Courts, and whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the principle of a state under the rule of law which, according to the petitioner, is entrenched in the Preamble to the Constitution.

After it was held by the Constitutional Court’s decision of 7 April 2004 that, under the Constitution, the Constitutional Court does not investigate the compliance of a law with a legal act having the legal force of a law, it was decided by the same decision, inter alia, to refuse to consider the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraph 8 of Article 920 of the Law on Courts is not in conflict with Paragraph 2 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and to return the petition, to this extent, to the petitioner.

2. By the Constitutional Court’s decision of 3 November 2005, the specified petitions were joined into one case and it was given reference number 10/04-12/04-18/04.

3. By the Constitutional Court’s decision of 14 November 2006, a part of the case subsequent to petitions Nos. 1B-09, 1B-11, and 1B-19 of the Vilnius Regional Court, the petitioner, to the extent that they request an investigation into whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble to the Constitution, was separated into an individual case and given reference number 10/04-12/04-18/04A.

II

The petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble to the Constitution, is based on the following arguments.

Paragraph 8 of Article 90 of the Law on Courts entrenches the provision that when a judge contests his release from office, he shall be entitled to appeal to the Vilnius Regional Court. Thus, the cognisable cases for the Vilnius Regional Court are the cases where one of the parties is the President of the Republic. Because of the fact that, in respect of the judges of the region, the President of the Republic has the powers established in the Law on Courts to appoint and release judges of a regional court, to transfer judges to another court, thus, in the opinion of the petitioner, there are grounds to think that Paragraph 8 of Article 90 of the Law on Courts is in conflict with Paragraph 2 of Article 31 of the Constitution, under which, a person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court, as well as with the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble to the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from G. Sagatys, senior advisor of the Law Department of the Office of the Seimas, a representative of the Seimas, the party concerned, were received, wherein it is stated that the implication made by the petitioner that Paragraph 8 of Article 90 of the Law on Courts is in conflict with Paragraph 2 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law is groundless.

According to the representative of the Seimas, the President of the Republic participates, in one way or another, in the appointment and release of judges of all levels, thus, if one assented to the statements of the petitioner, it would mean that there is no court in Lithuania which could utterly independently and impartially investigate the case, a party whereof is the President of the Republic.

The list of the grounds for release of judges from office which is entrenched in the Law on Courts is final; one of the grounds for release of a judge from office—when his conduct discredits the name of judges—is related to the fact that it must be assessed whether his conduct discredited the name of judges.

In the opinion of the representative of the Seimas, the Law on Courts establishes a clear procedure for investigation whether the conduct of a judge discredited the name of judges. The Court of Honour of Judges participates when investigating this issue and the Supreme Court may also participate. Their decision that the conduct of a judge discredited the name of judges is considered to be a pre-judicial fact. When the Vilnius Regional Court considers cases of release of judges from office, not the investigation of the material grounds (of the procedure for release of a judge from office, etc.) for the release of the judge from office, but the investigation of formal ones is of essential significance.

According to the representative of the Seimas, the independent and impartial consideration of cases on the release of judges from office at the Vilnius Regional Court is ensured by the system guaranteeing independence of a judge (the guarantees of the inviolability of the term of office of the judge and of the person of the judge and the guarantees of a social (material) character for the judge). The implementation of the principle of independence and impartiality of court which is entrenched in the Constitution is ensured by consolidating the procedural guarantees of parties of a case. It is first of all related to the right to appeal against the decision adopted by the Vilnius Regional Court at the court of higher instance, as well as under the cassation procedure—at the Supreme Court of Lithuania. Moreover, the career of a judge usually lasts longer than the office of the President of the Republic who appointed the judge to his office, thus, there are fewer possibilities of influencing the judge directly.

In the opinion of the representative of the Seimas, Paragraph 8 of Article 90 of the Law on Courts is not in conflict with the Constitution.

IV

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

The Constitutional Court

holds that:

1. The Vilnius Regional Court, the petitioner, requests an investigation into whether Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

2. The petitioner does not specify the wording of Paragraph 8 of Article 90 of the Law on Courts the investigation into the constitutionality of which it requests. It is obvious from the arguments of the petitions of the petitioner that the petitioner doubted whether Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict with the Constitution.

Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts prescribes that “when a judge contests his release from office he shall be entitled to appeal, within one month after the day of his release form office, to the Vilnius Regional Court”.

Even though the petitioner requests an investigation into the compliance of the entire Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts with the Constitution, it is obvious from the arguments of the petitioner that it doubts whether the provision “when a judge contests his release from office he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict with the Constitution.

3. In the context of the constitutional justice case at issue, it should be noted that the petitioner doubts the compliance of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts with Paragraph 2 of Article 31 of the Constitution because of the fact that the legal regulation established in Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in line with the requirements of independence and impartiality of court entrenched in Paragraph 2 of Article 31 of the Constitution.

4. While deciding, subsequent to the petition of the Vilnius Regional Court, the petitioner whether the provision “when a judge contests his release from office, he shall have the right <…> to appeal to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution, as, in the opinion of the petitioner, this provision is not in line with the requirements of independence and impartiality of court entrenched in Paragraph 2 of Article 31 of the Constitution, those aspects of constitutional concept of the independence of court and its impartiality must be disclosed, which are necessary in the constitutional justice case at issue.

Taking account of the fact that the petitioner’s doubt about the compliance of the provision “when a judge contests his release from office, he shall have the right <…> to appeal to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts with Paragraph 2 of Article 31 of the Constitution is related to the procedure for the release of judges from office established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), in the context of this constitutional justice case it is also necessary to elucidate the grounds for the release of judges from office which are established in Article 115 of the Constitution, and the procedure for the release of judges from office which is established in Article 112 of the Constitution, as well as the procedure for the release of a judge from office because of the fact that his conduct discredited the name of judges, which is established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements).

5. Paragraph 2 of Article 31 of the Constitution prescribes that “a person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court”. Paragraph 2 of Article 109 of the Constitution entrenches that while administering justice, the judge and courts shall be independent. These provisions of the Constitution entrench the principle of independence and impartiality of the judge and courts. The provisions of Paragraph 2 of Article 31 and Paragraph 2 of Article 109 of the Constitution which entrench the principle of independence and impartiality of the judge and courts are related to Paragraph 1 of Article 30 of the Constitution, wherein it is prescribed that “the person whose constitutional rights or freedoms are violated shall have the right to apply to court”.

The Constitutional Court has held in its acts more than once that from the constitutional principle of a state under the rule of law stems the imperative that a person, who thinks that his rights or freedoms are violated, has an absolute right to an independent and impartial court; that this right cannot be artificially restricted, nor that the implementation of this right may be unreasonably burdened; that this right may not be denied; that the defence of the violated rights in court is guaranteed to the person regardless of his legal status; that under the Constitution, the legislature has the duty to establish such legal regulation, whereby all disputes regarding violation of rights or freedoms of person could be decided in court; 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; that the legal regulation consolidating the procedure of implementation of the right of a person to judicial defence of his rights and freedoms must be in compliance, inter alia, with the requirement of legal clarity which emerges from the constitutional principle of a state under the rule of law; that the legislature must clearly establish in laws in what way and to what court the person may apply so that he could really implement his right to apply to court regarding the violation of his rights and freedoms; and that the law must establish such legal regulation so that it could be possible to appeal against the final act adopted by a court of general jurisdiction or a specialised court established under Paragraph 2 of Article 111 of the Constitution at least in one court of higher instance.

In the context of the constitutional justice case at issue, it should be noted that the legislature has discretion, following the constitutional principle of a state under the rule of law, to establish at which court and under what procedure a person may apply regarding the defence of his violated rights and freedoms. It should also be emphasised that, under the Constitution, the legislature may not establish any such legal regulation, under which a person, regardless of his legal status, could not apply to court regarding his violated rights or this his right would be restricted.

Thus, under the Constitution, a judge, as any other person who thinks that he was released from office groundlessly and unlawfully, has the right to apply to court regarding the defence of his violated right. This right of his is absolute and it is not permitted to restrict or deny it.

6. Courts are one of the institutions which execute state power (Paragraph 1 of Article 5 of the Constitution). The Constitution prescribes that in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1 of Article 109 of the Constitution). To administer justice is the purpose and constitutional competence of the judiciary. The judicial power implemented by courts—jurisdictional institutions—together with the legislative and executive branches of power, is a fully-fledged branch of state power, one of the branches of state power entrenched in the Constitution.

The Constitutional Court has held in its acts more than once that the function of administration of justice determines the independence of the judge and courts, that the independence of the judge and courts is one of the essential principles of a democratic state under the rule of law: courts, while administering justice, must ensure the implementation of the rights established in the Constitution, the laws and other legal acts, they must guarantee the supremacy of law and protect human rights and freedoms.

The Constitutional Court has also emphasised in its acts more than once that the independence of judges and courts is not an end in itself, but it is a necessary condition of protection of human rights and freedoms, not a privilege but one of the main duties of a judge and courts arising from the right guaranteed in the Constitution (inter alia, Paragraph 2 of Article 109, as well as in Paragraph 1 of Article 30) of every person who thinks that his rights or freedoms are violated to an independent and impartial arbiter of the dispute, which, under the Constitution and laws, would in essence solve the dispute at law.

The independence of the judge and court, as well as their impartiality are ensured by consolidating, in the Constitution and laws, the independence of the system of courts from the legislative and executive powers (institutional independence), the procedural independence of judges, the organisational independence and self-governance of courts, the status of judges, the inviolability of the person of a judge, immunities, the inviolability of the term of office of judges and social (material) guarantees of judges, as well as establishing the prohibition for the institutions of state power and governance, Members of the Seimas and other officials, political parties and public organisations and citizens to interfere into the activity of the judge or court.

One of important aspects of independence of the judge entrenched in the Constitution is the fact that while administering justice all judges have an equal legal status in the aspect that no different self-sufficiency guarantees of independence of the judge while administering justice (deciding cases) may be established. No judge, while administering justice, is or may be subordinate to any other judge or president of any court (inter alia, the court, where he works, as well as a court of higher level or instance). While deciding cases and adopting decisions, the judge follows only the Constitution, the laws and law. The judge who investigates a case must be neutral, he may not be partial.

The constitutional right of persons to a hearing by an impartial court also means that a judge, whose impartiality may raise doubts, may not investigate the case of a person. Impartiality and independence of the court are an essential guarantee of ensuring human rights and freedoms, and is a necessary condition of a fair investigation of the case, hence a condition of trust in court as well (the Constitutional Court’s ruling of 12 February 2001).

7. Courts, being one of the institutions implementing state power—judicial power—and administering justice, must act so that society would have trust in them. The society’s confidence in courts is an important element of a democratic state under the rule of law and of an open, just and harmonious civil society and an important condition of the effective activity of judicial power. The society’s confidence in courts is determined by various factors, inter alia, qualification of judges, their professionalism, ability to decide cases following not only the law, but also law, assurance of due process, respect for the persons participating in the process, rational legal argumentation (reasoning) of the final acts of the court, clarity of the final acts of the court to the persons participating in the case, etc. Judges must also meet very strict ethical and moral requirements: their reputation must be impeccable; the judge’s conduct—both related to the direct performance of his office and to his activity, which is not linked to his office—should not raise any doubts about his impartiality and independence; the judge must discharge his duties and behave so that his conduct would not discredit the name of judges.

8. The independence of the judge and court, as well as their impartiality, as mentioned before, are ensured, inter alia, by the constitutional guarantee of inviolability of the term of office of judges.

While ensuring the inviolability of the term of office of a judge, the cases are provided for in Article 115 of the Constitution, when the judge may be released from office; it is also entrenched in this ruling of the Constitutional Court that the judge may be released from office under the procedure established by law.

Under Article 74 of the Constitution, the judges specified in this article may be released from office under the procedure for impeachment proceedings, established by the Statute of the Seimas.

It needs to be emphasised that the Constitution entrenches the final list of the grounds for release of judges from office and that this list may not be expanded by law or other legal act.

8.1. When the requirement to establish the procedure for release of judges from office by law entrenched in Article 115 of the Constitution is construed in the context of Paragraph 4 of Article 111 of the Constitution, under which the formation and competence of courts shall be established by the Law on Courts, it means that the procedure for the release of judges from office must be established not in any law, but namely in the Law on Courts.

The formula “judges of courts shall be released from office according to the procedure established by law” used in Article 115 of the Constitution means that the procedure for release of judges from office established in the Law on Courts must be followed by all the subjects who, under the Constitution and the Law on Courts, have the powers to decide the questions of the release of judges from office or have the powers to participate while deciding the questions of the release of judges from office in the ways established in the Law on Courts.

While establishing the procedure for release of judges from office in the Law on Courts, the legislature, under the Constitution, has certain discretion, however, while establishing this procedure, the legislature, inter alia, may not deny or restrict the constitutional powers of the President of the Republic, the Seimas and of the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution which are entrenched in the Constitution. The powers of the President of the Republic entrenched in Item 11 of Article 84 of the Constitution, as well as the powers of the Seimas entrenched in Item 10 of Article 67 of the Constitution in formation of the judiciary are a significant element of the constitutional status of these state power institutions; changing or limiting the specified powers of the President of the Republic or the Seimas in this sphere, as well as establishing such a procedure for the implementation of these powers where the President of the Republic and the Seimas would be conditioned or bound by decisions of institutions or officials, which are not provided for in the Constitution, would mean a change of the constitutional competence of the President of the Republic or the Seimas. As the Constitutional Court held in its ruling of 9 May 2006, any change or restriction of the powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic on the appointment, promotion, transfer of judges of all courts or their release from office would mean a change of the purpose of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution which arises from the Constitution itself.

8.2. Different grounds (particularities thereof) for release of judges from office established in Article 115 of the Constitution imply, inter alia, the fact that the legislature, taking account of the particularities of the grounds for release of a judge from office, has the powers to differentiate the legal regulation of release of a judge from office in the Law on Courts, i.e. to establish different procedures for release of a judge from office. It should also be emphasised that while establishing the procedures for release of a judge from office by the Law on Courts (taking account , inter alia, of the ground (particularities thereof) of the release from office), in all cases one must heed the principle of independence of the judge and court, the presumption of innocence, the requirements of the proper legal proceedings and other imperatives entrenched in the Constitution.

8.3. The Constitutional Court has held in its acts more than once that independence of courts implies, inter alia, self-regulation and self-governance of courts, that while regulating by law the relations linked to the formation of self-governance institutions of the judiciary, as an independent branch of state power, the legislature enjoys broad discretion and that the legislature has the right to consolidate in the Law on Courts various self-governance institutions of the judiciary, to establish their formation procedure, their powers, etc.

In its ruling of 9 May 2006, the Constitutional Court held that the special institution of judges pointed out in Paragraph 5 of Article 112 of the Constitution must give recommendation to the President of the Republic concerning all the questions of appointment of judges, those of their professional career, as well as those of their release from office, save the exceptions which stem from the Constitution itself; that while establishing the procedure for the release of judges from office, the legislature must entrench in the Law on Courts such legal regulation, under which a special institution of judges specified in Paragraph 5 of Article 112 of the Constitution would be composed.

It needs to be noted that the Constitution does not prohibit the legislature from establishing by law other self-governance institutions of the judiciary which participate in the proceedings of the release of a judge from office too, however, these institutions cannot take over the powers directly assigned to the President of the Republic or the special institution of judges provided for by law, which is specified in Paragraph 5 of Article 112 of the Constitution, nor can these institutions change, nor restrict them.

8.4. Under Article 115 of the Constitution, judges of courts shall be released from office according to the procedure established by law, inter alia, when their conduct discredits the name of judges (Item 5). It needs to be noted that the conduct provided for in Item 5 of Article 115 of the Constitution discrediting the name of judges implies not only the establishment (statement) of corresponding facts of objective nature, but also their assessment.

The Constitution does not establish expressis verbis any types of conduct of judges discrediting the name of a judge. It needs to be noted that the formula “conduct discrediting the name of judges” is capacious, it includes not only the conduct of the judge, by which, while implementing his powers as a judge, he discredited the name of judges, but also the conduct which discredited the name of judges with no relation to the implementation of the powers of the judge. Under the Constitution, the legislature, as well as the self-governance institutions of the judiciary, have the discretion to establish what conduct of the judge should be regarded as such by which the name of judges is discredited, however, neither laws, nor decisions of self-governance institutions of the judiciary may establish any thorough (final) list of actions by which a judge discredits the name of judges. The question whether the conduct of the judge is the one by which the name of judges is discredited every time is decided after assessment of all the circumstances related with the said conduct and significant to the case.

9. Under the Constitution, judges shall be released from office: justices of the Supreme Court as well as its President—by the Seimas upon the submission of the President of the Republic (Paragraph 2 of Article 112 of the Constitution); judges of the Court of Appeal as well as its President—by the President of the Republic upon the assent of the Seimas (Paragraph 3 of Article 113 of the Constitution); judges and presidents of local and regional courts—by the President of the Republic (Paragraph 4 of Article 112 of the Constitution); judges and presidents of specialised courts (at this moment, one system of specialised courts, namely administrative ones, has been established and is functioning)—by the President of the Republic (Paragraph 4 of Article 112 of the Constitution).

10. Under Paragraph 5 of Article 112 of the Constitution, a special institution of judges provided for by law shall advise the President of the Republic on the release of judges from office.

In the context of the constitutional justice case at issue, it should be noted that, as the Constitutional Court held in its ruling of 9 May 2006, in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him, inter alia, on the release of a judge from office because his term of powers has expired or he reached the pensionable age established by law or the court judgment convicting that judge has come into effect, the said special institution of judges must not only make sure that there has been a certain conduct (deed) of the judge, but also assess whether this conduct (deed) really discredited the name of judges. If the conduct of the judge really discredited the name of judges, the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution must advise the President of the Republic to release the judge from office. It should be emphasised that in such cases the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution may not decide not to advise the President of the Republic to release the judge from office, while the President of the Republic, when he receives such advice, has the powers to release the judge from office (if the judge to be released from office is a justice of the Supreme Court—he has the powers to propose that the Seimas release him from office and if the judge to be released from office is a judge of the Court of Appeal—he has the powers to request for the assent of the Seimas in order to release him from office). However, if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution holds that even though there was certain conduct (deed) of a judge, he did not discredit the name of judges by that conduct (deed), the special institution of judges may not advise the President of the Republic to release the said judge from office, while the President of the Republic, without having received such advice, cannot release him from office, cannot propose that the Seimas release him from office (if the judge to be released from office is a justice of the Supreme Court) and cannot request for the assent of the Seimas in order to release him from office (if the judge to be released from office is a judge of the Court of Appeal).

11. It has been mentioned that in the constitutional justice case at issue it is also important to elucidate what procedure for the release of the judge from office because of the fact that he discredited the name of judges is entrenched in the Law on Courts.

At the time when the Vilnius Regional Court, the petitioner, adopted the rulings by which it was applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, the relations of disciplinary liability of judges were regulated by Articles 83-88 (wording of 24 January 2002) of the Law on Courts and the release of judges from office was regulated by Article 90 (wording of 24 January 2002) of the Law on Courts.

11.1. Articles 83–88 (wording of 24 January 2002) of the Law on Courts established disciplinary liability of judges and the procedure of its application.

Article 83 (wording of 24 January 2002) of the Law on Courts provides, inter alia, that “a disciplinary case shall be brought against a judge by the Judicial Court of Honour“ (Paragraph 1); that “disciplinary case may be brought against a judge at the Judicial Court of Honour <…> for the conduct discrediting the name of judges <…>” (Paragraph 2); that the conduct discrediting the name of judges shall be the conduct incompatible with the judge’s honour and in conflict with the requirements of the Judge’s Code of Conduct discrediting the name of judges and undermining the authority of the court; and that any misconduct in office—negligent performance of any specific duty of a judge or failure to act without a good cause shall also be regarded as conduct discrediting the name of judges (Paragraph 3).

Article 84 (wording of 24 January 2002) of the Law on Courts prescribed that a disciplinary case may be instituted against a judge immediately after at least one of the violations specified in Paragraph 2 (wording of 24 January 2002) of Article 83 comes to light (thus, inter alia, when the fact comes to light that the conduct of a judge discredited the name of judges); that the Judicial Ethics and Discipline Commission shall have the right to institute a disciplinary case against the judge (Paragraph 1); that the Council of Courts, as well as the president of the court where the judge works, or the president of any court of higher level shall have the right to propose that a disciplinary case be instituted against the judge (Paragraph 4); and that the instituted disciplinary case shall be transferred to the Judicial Court of Honour (Paragraph 6).

Under Paragraph 1 (wording of 24 January 2002) of Article 86 of the Law on Courts, upon the consideration of a disciplinary case, the Judicial Court of Honour may, by its decision: dismiss the disciplinary case because there are no grounds for the disciplinary liability; dismiss the disciplinary case because of missing the deadline to institute this case; limit itself to the consideration of the case; impose a disciplinary sanction.

Paragraph 2 (wording of 24 January 2002) of Article 86 of the Law on Courts provides:

The Judicial Court of Honour may, by its decision, advise the President of the Republic or the Seimas, following the procedure provided by this Law:

1) to appoint the judge to a judicial office of a court of a lower level;

2) to release the judge from office;

3) to institute the impeachment proceedings against the judge.”

Under Paragraph 4 (wording of 24 January 2002) of Article 86 of the Law on Courts, a decision of the Judicial Court of Honour may, within ten days after its adoption, be appealed to the Supreme Court; such appeals shall be heard by a college of three justices of the Supreme Court; an appeal may be filed by the judge and the subject which recommended to institute the disciplinary case.

11.2. Thus, the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) provides that after having considered the disciplinary case, the Judicial Court of Honour—a self-governance institution of the judiciary—may adopt one of the decisions specified in Article 86 (wording of 24 January 2002) of the Law on Courts, inter alia, it may impose a disciplinary sanction or adopt a decision on advising the President of the Republic or the Seimas, following the procedure provided by the Law on Courts, to release the judge from office; the decision of the Judicial Court of Honour may be appealed at the Supreme Court.

It needs to be noted that the formula “the Judicial Court of Honour” used in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) may not be construed only verbatim, as permitting to state that the Judicial Court of Honour is a court, i.e. an institution administering justice, which is provided for in the Constitution. The mere fact that the said formula includes the notion “court” does not mean that this institution is a court. The fact that the said institution is composed only of judges is not the grounds to state that it is a court, either. Under the Constitution, the court is only such state institution that is named in the Constitution namely as a court, i.e. an institution which administers justice. Under the Constitution, the Judicial Court of Honour is not nor may it be regarded as a court: the Judicial Court of Honour provided for in the Law on Courts is one of self-governance institutions of the judiciary which has the powers to consider deeds made by judges and to impose disciplinary sanctions on them. It should also be emphasised that the Judicial Court of Honour provided for in the Law on Courts is not a constitutional institution—under the Constitution, the legislature has the powers to decide whether or not to provide for such an institution in the Law on Courts.

It has been mentioned that Paragraph 4 (wording of 24 January 2002) of Article 86 of the Law on Courts provides that the decision of the Judicial Court of Honour may be appealed at the Supreme Court and that such appeals are considered by a three-justice college at the Supreme Court. The specified provisions of Paragraph 4 (wording of 24 January 2002) of Article 86 of the Law on Courts are not a matter of the investigation in this constitutional justice case.

11.3. Under Item 5 (wording of 24 January 2002) of Paragraph 1 of Article 90 of the Law on Courts, the judge shall be released from office when his conduct discredits the name of judges.

Paragraph 2 (wording of 24 January 2002) of Article 90 of the Law on Courts prescribed that the justices of the Supreme Court shall be released from office by the Seimas on the recommendation of the President of the Republic and upon the proposal of the President of the Supreme Court. (By the Constitutional Court’s ruling of 9 May 2006, Paragraph 3 (wording of 24 January 2002) of Article 90 of the Law on Courts, in which it was prescribed that without the proposal of the President of the Supreme Court for the President of the Republic to release a justice of the Supreme Court from office, the President of the Republic cannot recommend the Seimas to release a justice of the Supreme Court from office, was ruled to be in conflict with the Constitution.)

Paragraph 4 (wording of 24 January 2002) of Article 90 of the Law on Courts provides that the judges of the Court of Appeal shall be released from office by the President of the Republic upon the assent of the Seimas.

Paragraph 6 (wording of 24 January 2002) of Article 90 of the Law on Courts provides that the judges of regional and district courts shall be released from office by the President of the Republic.

Paragraph 7 (wording of 24 January 2002) of Article 90 of the Law on Courts provided that the President of the Republic shall be advised on the release of judges of a local court, a regional administrative court, a regional court, the Court of Appeal of Lithuania and the Supreme Administrative Court from office by the Council of Courts. (By the Constitutional Court’s ruling of 9 May 2006, Paragraph 7 (wording of 24 January 2002) of Article 90 of the Law on Courts, wherein it was prescribed that the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution has no right to advise the President of the Republic regarding the release of justices of the Supreme Court from office, was ruled to be in conflict with the Constitution.)

Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts provides that when a judge contests his release from office, he shall have the right to apply to the Vilnius Regional Court.

12. In the context of the constitutional justice case at issue, it is important to elucidate whether, under the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), the institution of a disciplinary case against the judge whose conduct discredited the name of judges, and the decision of the Judicial Court of Honour to advise the President of the Republic to release the judge from office because of the fact that his conduct discredited the name of judges are a necessary (obligatory) part of the procedure for the release of a judge from office, and in case of not fulfilment of this part, i.e. if the disciplinary case is not instituted against the judge whose conduct discredited the name of judges and if the Judicial Court of Honour has not advised the President of the Republic to release the judge from office because of that fact, the President of the Republic has no powers to release the judge from office because of that fact, and whether non-institution of the disciplinary case, thus, also the absence of the decision of the Judicial Court of Honour to propose that the President of the Republic release the judge from office because of the said, are not an obstacle for the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of the judge from office because of the fact that by the conduct of the judge discredited the name of judges, and after having received the advice regarding the release of the judge from office because of the fact that the conduct of the judge discredited the name of judges, to decide whether to release the judge from office.

12.1. While assessing the legal regulation established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) in a systemic manner, it should be held that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) entrenches such overall regulation regarding the relations of the release of the judge from office because of the fact that the conduct of the judge discredited the name of judges, under which the Judicial Court of Honour has the right, inter alia, to submit proposals for the President of the Republic to release the judge from office because of the fact that the conduct of the judge discredited the name of judges, and the President of the Republic, after having received the advice from the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the release of the judge from office because of the fact that the conduct of the judge discredited the name of judges, has the powers to decide whether to release the judge from office on the said grounds.

It should be noted that neither Article 90 (wording of 24 January 2002) of the Law on Courts, nor other articles of this law prescribe that the President of the Republic may release the judge from office because of the fact that the conduct of the judge discredited the name of judges only upon the proposal from the Judicial Court of Honour to the President of the Republic; neither Article 90 (wording of 24 January 2002) of the Law on Courts, nor other articles of this law prescribe that the President of the Republic may apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the release of the judge from office because of the fact that the conduct of the judge discredited the name of judges only in the case, when there is a proposal from the Judicial Court of Honour for the President of the Republic to release the judge from office because of the fact that the conduct of the judge discredited the name of judges.

It should also be noted that the constitutional powers of the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of a judge from office because of the fact that the conduct of the judge discredited the name of judges, cannot be bound by the presence or absence is a corresponding proposal of the Judicial Court of Honour to the President of the Republic. Under the Constitution, no decision of the Judicial Court of Honour in a disciplinary case, wherein it was investigated whether the conduct of a judge discredited the name of judges, whatever the content of such decision (inter alia, to dismiss the disciplinary case if there are no grounds for disciplinary liability; to restrict oneself to the consideration of the disciplinary case; to impose a disciplinary sanction on the judge), restricts nor let alone denies the constitutional powers of the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of the judge from office because of the fact that the conduct of the judge discredited the name of judges.

Thus, the mere fact that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) establishes such legal regulation under which the Judicial Court of Honour—a self-governance institution of the judiciary—has the right to consider the disciplinary cases of judges and, inter alia, to propose that the President of the Republic release a judge from office because of the fact that the conduct of the judge discredited the name of judges, does not mean that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) establishes such legal regulation, under which the implementation of the constitutional powers of the President of the Republic to release judges from office, as well as the implementation of the constitutional powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic regarding the release of the judge from office, depend on the fact whether there is the said proposal of the Judicial Court of Honour to release the judge from office.

If the said legal regulation established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) were construed as, purportedly, establishing the prohibition for the President of the Republic on applying to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of the judge from office until the Judicial Court of Honour (after it has considered the disciplinary case instituted against the judge) proposes the President of the Republic to release the judge from office because of the fact that the conduct of the judge discredited the name of judges, and as establishing the prohibition for the President of the Republic on releasing the judge from office because of the fact that the conduct of the judge discredited the name of judges if the Judicial Court of Honour (after it has considered the disciplinary case instituted against the judge) does not propose the President of the Republic to release the judge from office because of the fact that the conduct of the judge discredited the name of judges, it would mean that Article 86 (wording of 24 January 2002) (we construe it in relation with Article 90) of the Law on Courts establishes such legal regulation that restricts or even denies the powers of the President of the Republic, which are established in the Constitution, to release judges of local and regional courts as well as judges of the Court of Appeal from office whose conduct discredited the name of judges, and that restricts or even denies the powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advice the President of the Republic regarding the release of the judge from office. If the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) established the said legal regulation—restricting or even denying the powers of the President of the Republic, which are established in the Constitution, to release judges of the local and regional courts as well as judges of the Court of Appeal from office whose conduct discredited the name of judges, and restricting or even denying the powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advice the President of the Republic regarding the release of the judge from office—it could be regarded as being in conflict with the Constitution.

Having held that the legal regulation entrenched in Article 86 (wording of 24 January 2002) of the Law on Courts, under which the Judicial Court of Honour has the right (after it has considered the disciplinary case instituted against the judge), inter alia, to propose that the President of the Republic release the judge from office because of the fact that the conduct of the judge discredited the name of judges, may not be interpreted as prescribing that until the Judicial Court of Honour has proposed that the President of the Republic release the judge from office because of the fact that the conduct of the judge discredited the name of judges, the President of the Republic may not release the judge from office, it should be held that the powers of the Judicial Court of Honour established in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), after it has considered the disciplinary case instituted against the judge, inter alia, to propose that the President of the Republic release the judge from office because of the fact that the conduct of the judge discredited the name of judges, should be regarded as not a necessary part of the procedure of release of the judge from office because of the fact that the conduct of the judge discredited the name of judges, but only as a proposal which draws the attention of the President of the Republic to the fact that, in the opinion of the Judicial Court of Honour, the judge against whom a disciplinary case was instituted because of the fact that his conduct discredited the name of judges should be released from office. Such proposal of the Judicial Court of Honour, either under the Constitution, or under the Law on Courts, does not mean that upon receiving such proposal the President of the Republic has a duty to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution for advice regarding the release of the judge from office whose conduct, as it was held by the Judicial Court of Honour, discredited the name of judges.

12.2. It has been held in this constitutional justice case that the legislature has the powers to establish what self-governance institutions of the judiciary and under what procedure participate (may participate) in the process of the release of the judge from office and that by doing so the legislature may not establish any such legal regulation, under which the self-governance institutions of the judiciary which participate in the process of the release of judges from office would be granted such powers, by which the constitutional powers of the President of the Republic, the Seimas and the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution would be interfered with.

The Judicial Court of Honour which is provided for in the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements), and which, as mentioned before, under Article 86 (wording of 24 January 2002) of the Law on Courts, has the right (after it has considered the disciplinary case instituted against the judge), inter alia, to propose that the President of the Republic release a judge from office because of the fact that the conduct of the judge discredited the name of judges, is one of self-governance institutions of the judiciary which could be granted (and was granted) the said right in the law by the legislature. It has been mentioned that the mere fact that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) establishes such legal regulation, under which the Judicial Court of Honour—a self-governance institution of the judiciary—has the right to consider disciplinary cases of judges and, inter alia, to propose that the President of the Republic release a judge from office because of the fact that the conduct of the judge discredited the name of judges, does not mean that the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) establishes such legal regulation, under which the implementation of the constitutional powers of the President of the Republic to release judges from office, as well as the implementation of the constitutional powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic regarding the release of the judge from office, depend on the fact whether there is the said proposal of the Judicial Court of Honour to release the judge from office.

13. Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts provides: “When a judge contests his release from office, he shall be entitled to appeal, within one month from the day of his release from office, to the Vilnius Regional Court.”

It has been mentioned that it is obvious from the arguments of the petitioner that he doubted the compliance of the provision “when a judge contests his release from office, he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts with Paragraph 2 of Article 31 of the Constitution in the aspect that the legal regulation established in Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in line with the requirements of independence and impartiality of court entrenched in Paragraph 2 of Article 31 of the Constitution.

14. The provision “when a judge contests his release from office, he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts means that every judge, who was released from office on the grounds established in Article 115 of the Constitution, has the right to apply to the Vilnius Regional Court, i.e. the cases regarding the release of all judges from office are cognisable only at this court.

It has been mentioned that, under the Constitution, a judge, as any other person who thinks that he was released from office groundlessly and unlawfully, has the right to apply to court regarding the defence of his violated right. This right of his is absolute and it is not permitted to restrict or deny it. It was also mentioned that, under the Constitution, the legislature has the discretion, following the constitutional principle of a state under the rule of law, to establish at which court, inter alia, a court of general jurisdiction, and under what procedure the person who thinks that he was released from office groundlessly and unlawfully may apply regarding the defence of his violated rights.

It has also been held in this ruling of the Constitutional Court that the Constitution provides for significant powers to the President of the Republic, as the Head of State, in the formation of courts. The President of the Republic participates, in one way or another, when appointing or releasing judges of courts of all levels. The special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution which advises the President of the Republic, inter alia, regarding the release of judges from office is a counter-balance to these constitutional powers of the President of the Republic.

It needs to be emphasised that the mere fact that the President of the Republic decides or participates when deciding questions related to the career of judges—appoints and releases the judges of local and regional courts and of the specialised courts established under Paragraph 2 of Article 111 of the Constitution and upon assent of the Seimas appoints and releases the judges of the Court of Appeal as well as submits to the Seimas candidatures to be appointed or released as justices of the Supreme Court—is not the grounds to doubt the independence of courts and judges when they, in court, consider cases of release of judges from office, the judges whereof are appointed by the President of the Republic. If one agreed with the reasoning of the Vilnius Regional Court, the petitioner, that the fact that the President of the Republic appoints and releases judges of the regional courts and decides the questions of their professional career is the grounds to doubt the independence and impartiality of the regional court, when a party of the case considered by this court is the President of the Republic, it should be held that no court exists in Lithuania which is independent and could utterly impartially investigate the case, a party in which is the President of the Republic. It is obvious that such a statement (if one agreed with the reasoning of the Vilnius Regional Court, the petitioner, substantiating his doubt regarding the compliance of the provision “when a judge contests his release from office, he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts with Paragraph 2 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law) would be absolutely constitutionally groundless.

15. Taking account of the arguments set forth, the conclusion should be drawn that the provision “when a judge contests his release from office, he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict with Paragraph 2 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

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

ruling:

To recognise that the provision “when a judge contests his release from office, he shall be entitled to appeal <…> to the Vilnius Regional Court” of Paragraph 8 (wording of 24 January 2002, Official Gazette Valstybės žinios, 2002, No. 17-649) of Article 90 of the Republic of Lithuania’s Law on Courts is not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:           Armanas Abramavičius

                                                                                Toma Birmontienė

                                                                                Egidijus Kūris

                                                                                Kęstutis Lapinskas

                                                                                Zenonas Namavičius

                                                                                Ramutė Ruškytė

                                                                                Vytautas Sinkevičius

                                                                                Romualdas Kęstutis Urbaitis