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On the dismissal of a judge of a local court

Case No. 13/06

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 225) “ON RELEASING A JUDGE OF A LOCAL COURT FROM OFFICE” OF 3 MARCH 2005 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 45 (WORDING OF 24 JANUARY 2002) OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS, AND ON THE DISMISSAL OF THE PART OF THE CASE SUBSEQUENT TO THE PETITION OF THE COURT OF APPEAL OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 225) “ON RELEASING A JUDGE OF A LOCAL COURT FROM OFFICE” OF 3 MARCH 2005 WITH ITEM 4 OF ARTICLE 52 (WORDING OF 24 JANUARY 2002) OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS

 

20 December 2007

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Česlovas Atkočaitis and Milda Vainiutė, advisers on legal issues to the President of the Republic of Lithuania, acting as the representatives of the President 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, on 17 December 2007, in its public hearing, considered case No. 13/06 subsequent to the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the Decree of the President of the Republic of Lithuania (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 is not in conflict with Paragraph 1 of Article 29, Item 2 of Article 115 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 45, and Item 4 of Article 52 of the Republic of Lithuania’s Law on Courts.

The Constitutional Court

has established:

I

1. The Court of Appeal of Lithuania, the petitioner, considered a civil case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether:

Paragraph 8 of Article 90 of the Law on Courts is not in conflict with Paragraph 1 of Article 102, Item 1 of Paragraph 2 of Article 105 of the Constitution;

the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 (hereinafter also referred to as the 3 March 2005 decree (No. 225) of the President of the Republic) is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 115 of the Constitution, Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on Courts.

2. By the Constitutional Court’s Decision “On Dismissing the Proceedings in the Case Subsequent to the Petition of the Court of Appeal of Lithuania, the petitioner, Requesting an Investigation into Whether Paragraph 8 (wording of 24 January 2002) of Article 90 of the Republic of Lithuania’s Law on Courts is Not in Conflict with the Constitution of the Republic of Lithuania” of 3 December 2007 the following was decided: to dismiss the instituted legal proceedings in the part of the case subsequent to the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into 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 Paragraph 1 of Article 102 and Item 1 of Paragraph 2 of Article 105 of the Constitution; to continue the preparation the case for the Constitutional Court’s hearing, subsequent to the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the 3 March 2005 decree (No. 225) of the President of the Republic is not in conflict with Paragraph 1 of Article 29, Item 2 of Article 115 of the Constitution and Paragraph 1 of Article 45 and Item 4 of Article 52 of the Law on Courts.

II

The petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the compliance of the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 with the Constitution, Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on Courts is grounded on the following arguments.

1. By the Decree of the President of the Republic (No. 793) “On the Appointment of Judges to Local Courts” of 7 March 2000 (hereinafter also referred to as the 7 March 2000 decree (No. 793) of the President of the Republic) S. Petraškaitė was appointed a judge of the Ukmergė District Local Court for five years, and by the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005, which is impugned in this constitutional justice case, she was released from office upon the expiration of the term of powers. The impugned 3 March 2005 decree (No. 225) of the President of the Republic was adopted upon advice by the Council of Courts, which by its Resolution “On the Advice to the President of the Republic to Release a Judge of a Local Court from Office” of 18 February 2005 provided advice to release judge S. Petraškaitė of the Ukmergė District Local Court from office, because the Commission for the Periodic Assessment of the Activities of Judges, upon the assessment of activities of this judge, stated that her conduct did not meet the requirements of the Rules of Judicial Ethics.

2. The investigation into the compliance of the impugned decree of the President of the Republic with the Constitution and with the specified articles (parts thereof) of the Law on Courts is assigned by the Constitution to the competence of the Constitutional Court; in the opinion of the Court of Appeal of Lithuania, the petitioner, while investigating the compliance of the President of the Republic decree with the Constitution and with the specified articles (parts thereof) of the Law on Courts, the Constitutional Court should also investigate the factual circumstances due to which judge S. Petraškaitė of the Ukmergė District Local Court was released from office, also whether respective requirements established in the Constitution and in this law were observed.

In this respect, the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the Constitution, Paragraph 1 of Article 45, Item 1 of Article 52 of the Law on Courts is related with the petition of the petitioner requesting an investigation into 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, which was grounded on the principled provision that the investigation into the constitutionality of the President of the Republic decree whereby a judge shall be released from office shall be assigned to the competence of the Constitutional Court rather than to the Vilnius Regional Court, is not in conflict with the Constitution. It has been mentioned that the proceedings instituted in this case were dismissed by the Constitutional Court’s decision of 3 December 2007. Such decision was adopted pursuant, inter alia, to Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, which provides that, 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, and taking into account that by the Constitutional Court’s 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” of 27 November 2006 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 was ruled to be not in conflict with the Constitution.

3. The petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the Constitution, with Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on Courts provides no arguments why the procedure of testing the fitness of judge S. Petraškaitė of the Ukmergė District Local Court for the job of a judge could be unlawful or the assessment of the activities of S. Petraškaitė, as a judge, could be ungrounded; the petitioner generally did not formulate its position with regard to the said procedure and assessment. The Court of Appeal of Lithuania did not investigate the factual circumstances, which would allow any presumptions regarding unlawfulness of the said procedure or unreasonableness of the procedure for the assessment of activities of S. Petraškaitė as a judge, while those set forth in the ruling wherein the petition to apply to the Constitutional Court was adopted are in no way related with the doubt of the Court of Appeal of Lithuania, the petitioner, regarding the compliance of the impugned decree of the President of the Republic with the Constitution and with the specified articles (parts thereof) of the Law on Courts.

III

In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were received from the representatives of the President of the Republic, the party concerned, who were Č. Atkočaitis and M. Vainiutė, wherein it is stated that the impugned decree of the President of the Republic is not in conflict with the Constitution as well as with Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on Courts. The position of the representatives of the President of the Republic, the party concerned, is grounded on the following arguments.

1. In the course of the expiration of the five-year term for which S. Petraškaitė was appointed as a judge of the Ukmergė District Local Court, T. Birmontienė, the adviser of the President of the Republic on legal issues, the Head of the Law Department, upon commissioning by the President of the Republic, applied to the Council of Courts with the Letter (No. 2D-220) “On the Advice to the President of the Republic” of 17 January 2005 regarding, inter alia, the appointment of judge S. Petraškaitė of the Ukmergė District Local Court until she turns 65; by this letter, a request was made to provide advice regarding the appointment of twelve judges (whose five-year term had expired) in total as judges until they turn 65, therefore, the constitutional principle of equality of all persons was observed.

2. S. Petraškaitė was released from office by the impugned decree of the President of the Republic upon accomplishing all relevant procedures and upon receipt of the advice of the Council of Courts. Upon the expiration of the five-year term of powers of a judge of the local court, the President of the Republic may, but need not, appoint him to the office of a judge of the local court until he turns 65. This is the discretion of the President of the Republic, in the implementation of which the President of the Republic takes account not only of the wish of the individual to continue as a judge, but also of the public interest that only persons possessing proper professional and personal qualities would be appointed judges.

3. If the President of the Republic applies to the special institution of judges, which is specified in Paragraph 5 of Article 112 of the Constitution and which is provided for by law, so that it provides him advice regarding the appointment of a judge, while if the latter provides advice to the President of the Republic not to appoint the person to the office of a judge, under the Constitution, the President of the Republic may not appoint that person to the office of a judge. Therefore, the President of the Republic, upon advice of the Council of Courts to release judge S. Petraškaitė of the Ukmergė District Local Court from office, had to act accordingly.

IV

At the Constitutional Court’s hearing, the representatives of the President of the Republic, the party concerned, who were Č. Atkočaitis and M. Vainiutė, repeated the arguments set forth in their written explanations, as well as presented additional explanations.

The Constitutional Court

holds that:

1. The Court of Appeal of Lithuania, the petitioner, requests an investigation into whether the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 is not in conflict with Paragraph 1 of Article 29, Item 2 of Article 115 of the Constitution, Paragraph 1 of Article 45, Item 4 of Article 52 of the Law on Courts.

2. It is obvious from the arguments of the petitioner that the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the following is impugned:

Paragraph 1 of Article 29 of the Constitution whereby all persons shall be equal before the law, the court, and other state institutions and officials;

the provision “Judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law <…> 2) upon the expiration of the term of powers” of Article 115 of the Constitution;

Paragraph 1 of Article 45 (wording of 24 January 2002) of the Law on Courts stipulating that the appointment, transfer, release or removal of judges from office is only possible on the grounds and pursuant to the procedure stipulated by the Constitution and under this law;

Item 4 of Article 52 (wording of 24 January 2002) of the Law on Courts whereby a person may not be deemed of impeccable reputation and appointed to the office of a judge, if the person “does not meet other requirements of the Rules of Judicial Ethics”.

3. By the Decree of the President of the Republic (No. 793) “On the Appointment of Judges to Local Courts” of 7 March 2000, which took effect on the day of its signing, S. Petraškaitė was appointed a judge of the Ukmergė District Local Court for five years.

4. Upon the expiration of the five-year term for which S. Petraškaitė was appointed a judge of the Ukmergė District Local Court, T. Birmontienė, the adviser of the President of the Republic on legal issues, the Head of the Law Department, upon commissioning by the President of the Republic, applied to the Council of Courts with the Letter (No. 2D-220) “On the Advice to the President of the Republic” of 17 January 2005 regarding the appointment of fifteen persons as judges of local courts, including the appointment of judges until they turn 65 of twelve judges whose five-year term of powers had expired; one of those twelve judges was a judge S. Petraškaitė of the Ukmergė District Local Court.

5. By the Resolution “On the Advice to the President of the Republic to Release a Judge of a Local Court from Office” of 18 February 2005, the Council of Courts provided advice to the President of the Republic to release S. Petraškaitė, a judge of the Ukmergė District Local Court, from office upon the expiration of the term of powers (and specified the day as to when she was to be released from office—7 March 2005). This advice by the Council of Courts appeared, when the Council of Courts, upon the assessment of the activities of this judge and taking account of the conclusion of the Commission for the Periodic Assessment of the Activities of Judges that the conduct of S. Petraškaitė did not meet the requirements of the Rules of the Judicial Ethics, held that she may not be appointed as a judge until she turns 65.

6. On 3 March 2005, the President of the Republic issued the Decree (No. 225) “On Releasing a Judge of a Local Court from Office” which provides:

Article 1.

In pursuance of Item 11 of Article 84, Article 112, Item 2 of Article 115 of the Constitution of the Republic of Lithuania and taking account of the advice of the Council of Courts I hereby release Sabina PetraškaitĖ, a judge of the Ukmergė District Local Court, from office upon the expiration of the term of her powers.

Article 2.

This decree shall take effect on 7 March 2005.”

7. At the time when S. Petraškaitė was appointed a judge of the Ukmergė District Local Court by the 7 March 2000 decree (No. 793) of the President of the Republic, judges of local courts were first appointed for the term of five years; upon the expiration of this term, judges of local courts, upon the advice by the Council of Courts, without an examination, could be appointed until they turn 65 (Paragraph 1 (wording of 31 May 1994 without the clause which was ruled to be unconstitutional by the Constitutional Court’s ruling of 21 December 1998) of Article 36 (wording of 8 April 1998)) of the Law on Courts; the fact that S. Petraškaitė was appointed a judge of the Ukmergė District Local Court for the term of five years, is explicitly referred to in the said decree of the President of the Republic. By the way, the provision that judges of local courts shall first be appointed for the term of five years, was also subsequently consolidated in the Law on Courts wherein a number of amendments and supplements were made; for instance, also during the consideration of this constitutional justice case, it was prescribed in Paragraph 1 (wording of 24 January 2002) of Article 57 (wording of 28 January 2003 without Paragraph 3 ruled to be unconstitutional by the ruling of the Constitutional Court of 9 May 2006) of the Law on Courts, inter alia, that a person shall be first appointed to the office of a judge for the five-year term with the purpose of assessment whether he is fit for the office of a judge, also that upon the expiration of the five-year term the President of the Republic may appoint such person to the office of a judge of a local court without an examination or competition until he turns 65.

8. The Constitutional Court held in its ruling of 22 October 2007 that “the Constitution does not oblige the legislature to establish such legal regulation that the time of the expiry of powers of the judges which is established in the Constitution or laws would coincide with the time period when the judge reaches the pensionable age established in the law: one may, by means of a law, establish also such legal regulation whereby the time of powers of the judge may expire before he reaches the pensionable age established in the law, as well as such legal regulation whereby the time of powers of the judge may expire after he reaches the pensionable age established in the law.

The Constitutional Court also held in its ruling of 22 October 2007 (referring to its preceding jurisprudence) that it “investigated the compliance of the legal regulation whose constituent part was a provision whereby the judges of the local courts shall be appointed to office for five years for the first time, with the Constitution and has not ruled this provision to be in conflict with the Constitution (the Constitutional Court’s rulings of 21 December 1999 and 9 May 2006), also that “This term should be construed as the ‘term of powers’ of the judge, upon the expiry of which provided the person has proved by his performance and conduct to be fitting for the work of a judge, the question of his appointment for the longer term of powers as pointed out in the law is decided (the Constitutional Court’s ruling of 21 December 1999)”.

In this context, attention should be paid to the fact that, as the Constitutional Court held in its rulings of 9 May 2006 and 22 October 2007, “the principle of independence of judges entrenched in the Constitution implies only such legislative regulation of the term of powers of the judge that when appointing a judge, he would know the term of powers (until the time established by law or until he reaches the pensionable age established by law)”, and that “the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion”.

Thus, if pursuant to laws judges of certain courts are first appointed for a certain period (required as the evidence of his fitness to perform as a judge), which does not coincide with the time when the judge attains the pension age provided for by law (or with other term with which the law has linked the end of the career of the judge), the President of the Republic has no absolute discretion to decide whether the person whose term of powers of a judge (required as the evidence of his fitness to perform as a judge) has expired should be appointed as a judge again (certainly, if he wishes so), or should be released from office upon the expiration of the term of powers. In adopting a respective decision the President of the Republic is bound by the Constitution, inter alia, the principles of responsible governance and the protection of legitimate expectations consolidated therein.

9. It should be held that, after 6 March 2005, which was the last day of the term of powers of S. Petraškaitė as a judge of the Ukmergė District Local Court, upon the assessment of her fitness to perform as a judge, S. Petraškaitė, a judge of the Ukmergė District Local Court, had to be either appointed until she turns 65 or (if it was established that she was unfit to perform as a judge) released from office upon the expiration of the term of powers.

Both in the first and in the second case the President of the Republic had to obtain the advice of the special judicial institution provided for in Paragraph 5 of Article 112 of the Constitution. According to the legal regulation established by the Law on Courts at that time such an institution was the Council of Courts (before the Law on Courts with its wording of 24 January 2002, this institution used to be named as the Judicial Council; the same name is also used in the Republic of Lithuania’s Law on Amendment of Articles 119, 120 and 121 of the Law on Courts adopted by the Seimas on 23 May 2006 upon respective amendments to the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements)).

10. As mentioned before, upon the expiration of the five-year term for which S. Petraškaitė was appointed a judge of the Ukmergė District Local Court, T. Birmontienė, the adviser of the President of the Republic on legal issues, the Head of the Law Department, upon commissioning by the President of the Republic, applied to the Council of Courts with the Letter (No. 2D-220) “On Advice to the President of the Republic” of 17 January 2005 regarding, inter alia, the appointment of the judge S. Petraškaitė of the Ukmergė District Local Court until she turns 65.

11. The Constitutional Court, while construing, inter alia, Article 85 and Paragraph 5 of Article 112 of the Constitution, held the following in its ruling of 9 May 2006:

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

These provisions were repeated in the Constitutional Court’s ruling of 21 September 2006. In the same ruling, the Constitutional Court also held that “prior to the ruling of the Constitutional Court which construed for the first time 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 concerning the appointment, promotion, transfer of judges or their release from office are implemented by issuing a corresponding decree of the President of the Republic, there used to be the practice where such decrees would not be issued, but advisors or assistant advisors, upon commissioning by the President of the Republic, used to apply to the said institution of judges”, however, “corresponding decrees of the President of the Republic or corresponding decisions of to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the appointment, promotion, transfer of judges or their release from office could not be questioned” only on such grounds.

These provisions are also applicable to the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005; if the President of the Republic, upon the receiving of respective advice from the Council of Courts, had issued a decree whereby S. Petraškaitė would have been appointed a judge of the Ukmergė District Local Court until she turns 65, the said provisions should also be applicable to the decree of the President of the Republic.

12. The said request of the President of the Republic to provide advice regarding the appointment of S. Petraškaitė, a judge of the Ukmergė District Local Court, until she turns 65, especially taking into account that, as mentioned above, after 6 March 2005 which was the last day of the term of powers of S. Petraškaitė as a judge of the Ukmergė District Local Court, S. Petraškaitė, upon the assessment of her fitness for the job of a judge, had to be either appointed until she turns 65 or (if one established that she is unfit for the job of a judge) released from this office upon the expiration of the term of powers, also that the expiration of the term of powers is explicitly established as the grounds for the release of a judge from office by the Constitution and the Law on Courts, should also be interpreted as an implicit request to provide advice whether S. Petraškaitė, a judge of the Ukmergė District Local Court, if one established that she is unfit for the job of a judge, should be released from office upon the expiration of the term of powers.

13. On 18 February 2005, the Council of Courts considered the request of the President of the Republic to provide advice regarding the appointment of S. Petraškaitė as a judge of the Ukmergė District Local Court until she turns 65. It has been mentioned that the Council of Courts by its Resolution “On the Advice to the President of the Republic to Release a Judge of a Local Court from Office” of 18 February 2005 provided advice to the President of the Republic to release S. Petraškaitė from the office of a judge of the Ukmergė District Local Court upon the expiration of the term of powers (and specified the day from which she was to be released from office—7 March 2005), also that such advice of the Council of Courts was determined by the fact that the Council of Courts, upon the assessment of activities of this judge and taking into account the conclusion of the Commission for the Periodic Assessment of the Activities of Judges that the conduct of S. Petraškaitė did not meet the requirements of the Rules of Judicial Ethics, held that she may not be appointed as a judge until she turns 65.

14. In this context, it should be noted that, as it has been held by the Constitutional Court, the advice of a special institution of judges provided for in Paragraph 5, Article 112 of the Constitution (in the case at issue, the Council of Courts) gives rise to legal consequences: if there is no advice of this special institution of judges, the President of the Republic may not adopt a decision on appointment, promotion, transfer or release of a judge from office (the Constitutional Court’s rulings of 21 December 1999, 2 June 2005, and 9 May 2006); the advice to the President of the Republic by the special institution of judges established by law as provided for in Paragraph 5 of Article 112 of the Constitution should be rationally reasoned, the reasoning upon which the advice is given whether or not to appoint, promote, transfer, release a certain individual from the office of a judge, should be clearly set forth, no advice (or other decisions) of the said special institution of judges may be grounded on presumptions, subjective approaches or opinions of the said special institution of judges, it should be grounded upon established (ascertained) facts, upon the assessment of the professional readiness of respective individuals and such personal qualities, and other circumstances, which determine their fitness or unfitness for respective office (or the job of a judge in general) (the Constitutional Court’s ruling of 9 May 2006).

15. It has been noted (in Item 2 of Section II of this ruling of the Constitutional Court) that in the opinion of the Court of Appeal of Lithuania, the petitioner, while investigating the compliance of the impugned decree of the President of the Republic with the Constitution and with the said articles (parts thereof) of the Law on Courts, the Constitutional Court should also investigate the factual circumstances, due to which S. Petraškaitė, a judge of the Ukmergė District Local Court, was released from office, also, whether the respective requirements established in the Constitution and in this law were observed.

The Constitutional Court, while investigating a constitutional justice case according to the Constitution and the Law on the Constitutional Court, has the powers, if required, to investigate the factual circumstances of significance to the decision of the case (the Constitutional Court’s decisions of 15 December 2006 and 17 January 2007). It is also stated in the jurisprudence of the Constitutional Court that “under the Constitution, the Constitutional Court enjoys the powers to investigate the compliance of acts of the President of the Republic with the Constitution and laws irrespective of whether these acts are of an individual or normative character, whether they are of one-off (ad hoc) application or of permanent validity”, that “In case the Constitution or laws provide for respective requirements that must be followed (that must be fulfilled) in the course of issuance of an act of the President of the Republic, the Constitutional Court, when deciding whether the act of the President of the Republic is not in conflict with the Constitution and laws, must also investigate whether one has followed (fulfilled) these requirements, since in case these factual circumstances were not established, it would also not be possible to investigate the compliance of the act of the President of the Republic with the Constitution”, also that “under the Constitution there may not be any such acts of the President of the Republic, which have been issued by him while implementing the powers established to him, as the Head of State, in the Constitution and laws, that the Constitutional Court could not investigate” (the Constitutional Court’s ruling of 30 December 2003; by the way, the first of the cited provisions has been recited more than once in various acts of the Constitutional Court).

16. On the other hand, it has been mentioned (in Item 3 of Section II of the fact-establishing part of this ruling of the Constitutional Court) that Court of Appeal of Lithuania, the petitioner, did not present any arguments why the procedure of the assessment of fitness of S. Petraškaitė, a judge of the Ukmergė District Local Court, for the job of a judge could be unlawful or the assessment of the activities of S. Petraškaitė as a judge could be ungrounded; in general, the petitioner did not formulate its position with regard to the said procedure and the assessment. It was also noted that the Court of Appeal of Lithuania did not investigate the factual circumstances, which would allow any presumptions regarding unlawfulness of the said procedure or unreasonableness of the procedure for the assessment of activities of S. Petraškaitė as a judge, while those set forth in the ruling wherein the petition to the Constitutional Court was adopted, are in no way related with the doubt of the Court of Appeal of Lithuania, the petitioner, regarding the compliance of the impugned decree of the President of the Republic with the Constitution and the specified articles (parts thereof) of the Law on Courts.

It has also been noted (in Item 2 of Section II of the fact-establishing part of this ruling of the Constitutional Court) that the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the compliance of the impugned decree (No. 225) of the President of the Republic with the Constitution and with the specified articles (parts thereof) of the Law on Courts is related with the petition of this petitioner requesting an investigation into whether Paragraph 8 (wording of 24 January 2002) of Article 90 of the Law on Courts is not in conflict (to the specified extent) with the Constitution regarding which the instituted legal proceedings were dismissed in this constitutional justice case by the Constitutional Court’s decision of 3 December 2007.

It is obvious that the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with the Constitution and with the articles (parts thereof) of the Law on Courts specified by Court of Appeal of Lithuania, the petitioner, is impugned on the grounds that the investigation into the compliance of this decree (as well as other decrees) of the President of the Republic with the Constitution is an exclusive constitutional competence of the Constitutional Court.

17. In this context, it should be noted that, according to Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing references to laws, while according to Item 5 of Paragraph 2 of Article 67, a ruling of the court whereby it applies to the Constitutional Court must specify the legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution.

While construing Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, the Constitutional Court has held that “the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution according to the content of the norms and/or the scope of regulation must be indicated clearly, unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. <…> The petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must also clearly indicate the legal arguments grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the impugned legal act, the compliance of which with the concretely indicated provision of the Constitution is doubtful to the petitioner” (the Constitutional Court’s decision of 16 April 2004, its ruling of 12 December 2005, and its decisions of 14 March 2006 (Case No. 14/03) and 29 March 2006). The Constitutional Court has also held that “the requirement to indicate the legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution arising from Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, means that the courts that apply to the Constitutional Court with the petition requesting an investigation into whether the law or other legal act (part thereof) is not in conflict with the Constitution, while arguing their opinion presented in the petition that the law or other legal act (part thereof) is in conflict with the Constitution, may not confine themselves to general reasoning or statements that the law or other legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which impugned articles (paragraphs, items thereof) and to what extent, in their opinion, are in conflict with the Constitution, and to reason their position on the compliance of every impugned provision of the legal act (part thereof) with the Constitution with clearly formulated legal arguments” (the Constitutional Court’s rulings of 12 December 2005, 16 January 2006, 17 January 2006, its decisions of 17 January 2006, 5 July 2007, 6 September 2007, 12 September 2007, and 24 October 2007).

It should be noted that such construction of the said provisions of the Law on the Constitutional Court had been presented in the jurisprudence of the Constitutional Court much earlier than the Court of Appeal of Lithuania, the petitioner, applied to the Constitutional Court while impugning the compliance of the decree (No. 225) of the President of the Republic with the specified articles (parts thereof) of the Law on Courts.

18. It should be held that such arguing of the position in the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into the compliance of the 3 March 2005 decree (No. 225) of the President of the Republic with articles (parts thereof) of the Constitution and the Law on Courts, when this court itself, as mentioned above (in Item 3 of Section II of the fact-establishing part of the ruling of the Constitutional Court), did not investigate the factual circumstances that would allow any presumptions regarding the unlawfulness of the procedure for assessment of the fitness of S. Petraškaitė, a judge of the Ukmergė District Local Court, for the job of a judge, or the absence of grounds for the assessment of activities of S. Petraškaitė as a judge, while those specified in the ruling wherein it was decided to apply to the Constitutional Court, are in no way related with the doubt of the Court of Appeal of Lithuania, the petitioner, regarding the compliance of the impugned decree of the President of the Republic with the Constitution and with the articles (parts thereof) of the Law on Courts, especially taking account of the civil case considered by the Court of Appeal of Lithuania, wherein the decision was made to apply to the Constitutional Court, comprehensive information is available on how the fitness of this judge for the job of a judge was assessed, means that in this constitutional justice case the petitioner does not question the lawfulness of this procedure or grounds of assessment of activities of S. Petraškaitė as a judge, therefore, also the grounds and lawfulness of the Resolution of the Council of Courts “On the Advice to the President of the Republic to Release a Judge of a Local Court from Office” of 18 February 2005.

Therefore, the procedure for assessment of the fitness of S. Petraškaitė, a judge of the Ukmergė District Local Court, for the job of a judge and the grounds of assessment of activities of S. Petraškaitė as a judge (thus, the grounds and lawfulness of the Resolution of the Council of Courts “On the Advice to the President of the Republic to Release a Judge of a Local Court from Office” of 18 February 2005) in no aspects is a matter of investigation in this constitutional justice case.

19. Thus, it should be held that, in this part of the constitutional justice case regarding the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the 3 March 2005 decree (No. 225) of the President of the Republic is not in conflict with Item 4 of Article 52 (wording of 24 January 2002) of the Law on Courts, a matter of investigation is absent.

The absence of a matter of investigation in the petition of the petitioner means that the petition is not within the jurisdiction of the Constitutional Court (the Constitutional Court’s decisions of 6 May 2003, 13 May 2003, its ruling of 13 May 2004, and its decision of 8 August 2006).

Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court provides that, 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.

It has been expressis verbis stated in the jurisprudence of the Constitutional Court that the absence of a matter of investigation in a case regarding the petition of the petitioner is the grounds for dismissal of the case (the Constitutional Court’s ruling of 25 January 2001, its decision of 6 May 2003).

20. Paragraph 2 of Article 80 of the Law on the Constitutional Court, regulating the refusal by the Constitutional Court to investigate an inquiry, prescribes that if in the course of the consideration of the inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the instituted legal proceedings on the grounds thereof.

This provision of the Law on the Constitutional Court is mutatis mutandis applicable to the consideration of petitions to investigate the compliance of a legal act with the Constitution (with another legal act of higher legal force) and the adoption of the respective decisions (the Constitutional Court’s rulings of 21 September 2006 and 6 September 2007, its decision of 13 November 2007).

According to Item 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

21. Taking account of the arguments set forth, the part of this constitutional justice case regarding the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the 3 March 2005 decree (No. 225) of the President of the Republic is not in conflict with Item 4 of Article 52 (wording of 24 January 2002) of the Law on Courts, must be dismissed.

22. It should be held that the Council of Courts, upon the consideration of the request of the President of the Republic for advice regarding the appointment of S. Petraškaitė, a judge of the Ukmergė District Local Court, until she turns 65, upon the assessment of the activities of this judge and having taken account of the conclusion of the Commission for Periodic Assessment of the Activities of Judges that her conduct did not meet the Rules of Judicial Ethics, had the powers to provide advice to the President of the Republic not to appoint her (to the specified office) until she turns 65.

Such advice, especially taking into account that, as mentioned before, the request of the President of the Republic to provide advice regarding the appointment of S. Petraškaitė, a judge of the Ukmergė District Local Court, until she turns 65, should also be interpreted as an implicit request to provide advice whether S. Petraškaitė, if it were established that she is not fit for the job of a judge, should be released from office upon the expiration of the term of powers, could be formulated not just as advice to the President of the Republic not to appoint S. Petraškaitė, a judge of the Ukmergė District Local Court, until she turns 65, but also as advice to the President of the Republic to release S. Petraškaitė, a judge of the Ukmergė District Local Court, from the office of a judge upon the expiration of the term of powers (or as advice to the President of the Republic not to appoint S. Petraškaitė, a judge of the Ukmergė District Local Court, until she turns 65 and release her from office upon the expiration of the term of powers).

In this context, it should be mentioned that the Constitutional Court has held in its ruling of 9 May 2006 that “in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him on the release of a judge from office because his term of powers has expired or he reached the pensionable age established by law or the court judgment convicting that judge has come into effect, the said special institution of judges must make sure whether the specified facts actually exist and, if they do, it must advise the President of the Republic to release the judge from office”, that “if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution establishes that the said objective facts really exist, it, under the Constitution, may not decide not to advise the President of the Republic to release the judge from office, and the President of the Republic, when he receives such advice, must release the corresponding judge from office”, also that “under the Constitution, in such cases the judge must be released from office”.

23. By the Constitutional Court’s ruling of 9 May 2006, Paragraph 2 (wording of 24 January 2002) of Article 119 of the Law on Courts to the extent that it prescribed that not only judges but also other persons compose the Council of Courts was in conflict with Paragraph 2 of Article 5 and Paragraph 5 of Article 112 of the Constitution of the Republic of Lithuania, the constitutional principle of the separation of powers, and the constitutional principle of a state under the rule of law. In the rulings of 9 May 2006, 21 September 2006, and 17 December 2007 the Constitutional Court held that it does not mean that the decisions of the Council of Courts, which was composed under the articles (parts thereof) of the Law on Courts (wording of 24 January 2002 with subsequent amendments and supplements) that were valid at that time, to advise the President of the Republic on the appointment, promotion, transfer of judges or their release from office or any other decisions of such Council of Courts may be questioned only on these grounds.

Thus, the 3 March 2005 decree (No. 225) of the President of the Republic whereby S. Petraškaitė, a judge of the Ukmergė District Local Court, was released from office upon the expiration of the term of powers may not be questioned on the sole grounds that the advice to release this judge from office was given to the President of the Republic by the Council of Courts, which was composed not only of judges, but also of other persons, either.

24. The President of the Republic, upon receiving advice from the Council of Courts to release S. Petraškaitė, a judge of the Ukmergė District Local Court, upon the expiration of the term of powers (upon specifying the day when she was to be released from this office—7 March 2005), had to act accordingly.

The President of the Republic did precisely that when he issued the Decree (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 and stipulated that it was to become effective as of 7 March 2005.

25. Therefore, there are no grounds to state that, purportedly, the impugned decree of the President of the Republic violates Paragraph 1 (wording of 24 January 2002) of Article 45 of the Law on Courts, wherein it is prescribed that a judge may be appointed, transferred, released or removed from office only on the grounds and pursuant to the procedure stipulated in the Constitution and in this Law, also the provision “Judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law <...> (2) upon the expiration of the term of powers or upon reaching the pensionable age established by law” of Article 115 of the Constitution.

26. Alongside, it should be held that there are no legal grounds for the statement that, purportedly, the impugned decree of the President of the Republic was issued in violation of Paragraph 1 of Article 29 of the Constitution wherein it is prescribed that all persons are equal before the law, the court and other state institutions and officials, since S. Petraškaitė was not treated in a way different from other judges of local courts whose five-year term of powers was about to expire and whose appointment until they turn 65 (thus, also, whose assessment of the fitness to the job of a judge) was subject to the application to the Council of Courts (before the Law on Courts with its wording 24 January 2002—the Judicial Council).

27. Taking account of the arguments set forth, the conclusion should be drawn that the Decree of the President of the Republic (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 is not in conflict with Part 1 of Article 29 of the Constitution, the provision “Judges of courts of the Republic of Lithuania shall be released from office according to the procedure established by law <...> (2) upon the expiration of the term of powers or upon reaching the pensionable age established by law” of Article 115, and Paragraph 1 of Article 45 (wording of 24 January 2002) of the Law on Courts.

Conforming to Articles 102, 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56, 69 and Paragraph 2 of Article 80 of the Republic of Lithuania’s Law on the Constitutional Court, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the Decree of the President of the Republic of Lithuania (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 (Official Gazette Valstybės žinios, 2005, No. 31-984) is not in conflict with the Constitution of the Republic of Lithuania, and Paragraph 1 of Article 45 (wording of 24 January 2002) of the Republic of Lithuania’s Law on Courts.

2. To dismiss the part of the case subsequent to the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether the Decree of the President of the Republic of Lithuania (No. 225) “On Releasing a Judge of a Local Court from Office” of 3 March 2005 (Official Gazette Valstybės žinios, 2005, No. 31-984) is not in conflict with Item 4 of Article 52 (wording of 24 January 2002) of the Republic of Lithuania’s Law on Courts.

This ruling of the Constitutional Court is final and subject to no appeal.

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Egidijus Kūris
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Vytautas Sinkevičius
                                                                      Stasys Stačiokas
                                                                      Romualdas Kęstutis Urbaitis