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On the remuneration of judges

Case No. 27/2009-29/2009-30/2009-31/2010-53/2010-55/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ITEM 2 OF PARAGRAPH 2 OF ARTICLE 4, PARAGRAPH 1 OF ARTICLE 5 AND PARAGRAPH 1 OF ARTICLE 6 OF THE REPUBLIC OF LITHUANIA LAW ON THE REMUNERATION OF JUDGES (WORDING OF 6 NOVEMBER 2008) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 14 February 2011

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Rimantas Jonas Dagys, Chairman of the Seimas Committee on Social Affairs and Labour,

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 1 February 2011, heard constitutional justice case No. 27/2009-29/2009-30/2009-31/2010-53/2010-55/2010 subsequent to:

1) the petition of the Kaunas Regional Administrative Court, a petitioner, requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-37/2009);

2) the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-39/2009);

3) the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-40/2009);

4) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Paragraph 1 (wording of 6 November 2008) of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges is not in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, also whether Paragraph 1 (wording of 6 November 2008) of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges is not in conflict with Articles 29 and 48 of the Constitution of the Republic of Lithuania (petition No. 1B-34/2010);

5) the petition of the Vilnius District Local Court, a petitioner, requesting to investigate whether Paragraph 1 (wording of 6 November 2008) of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges is not in conflict with Articles 29, 48 and 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-64/2010);

6) the petition of the Kaunas Regional Administrative Court, a petitioner, requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges are not in conflict with Article 29 and Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-74/2010).

By the Constitutional Court decision of 25 January 2011, the petitions of the petitioners were joined into one case and it was given reference number 27/2009-29/2009-30/2009-31/2010-53/2010-55/2010.

The Constitutional Court

has established:

I

  1. The Kaunas Regional Administrative Court, a petitioner, was investigating an administrative case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-37/2009).
  2. The Šiauliai Regional Administrative Court, a petitioner, was investigating an administrative case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-39/2009).
  3. The Šiauliai Regional Administrative Court, a petitioner, was investigating an administrative case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-40/2009).
  4. The Vilnius Regional Administrative Court, a petitioner, was investigating an administrative case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 6 November 2008) of Article 5 of the Law on the Remuneration of Judges is not in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, also whether Paragraph 1 (wording of 6 November 2008) of Article 6 of the Law on the Remuneration of Judges is not in conflict with Articles 29 and 48 of the Constitution (petition No. 1B-34/2010).
  5. The Vilnius District Local Court, a petitioner, was investigating a civil case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 6 November 2008) of Article 6 of the Law on the Remuneration of Judges is not in conflict with Articles 29, 48 and 109 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-64/2010).
  6. The Kaunas Regional Administrative Court, a petitioner, was investigating an administrative case. By its decision, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-74/2010).

II

  1. The petitions of the Kaunas Regional Administrative Court, the Šiauliai Regional Administrative Court and the Vilnius Regional Administrative Court, the petitioners, regarding the compliance of Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges with the Constitution are substantiated by the following arguments.

Under the legal regulation valid until the entry into force of the Law on the Remuneration of Judges, for the purpose of calculating additional pay, one’s work record also used to include the record of work as an advocate.

Under the disputed Item 2 of Paragraph 2 of Article 4 of the Law on the Remuneration of Judges, a constituent part of the remuneration of judges is the additional pay for the years served for the state, which is calculated according to Article 5 of this law. Paragraph 1 of this article provides that judges of courts of general jurisdiction and specialised courts are paid the additional pay for the years served for the state from 11 March 1990 in the offices specified in Paragraphs 1–4 and Items 1–4 of Paragraph 5 of Article 4 of the Republic of Lithuania Law on the State Service (with the exception of members of the municipal council who have not served as mayors and deputy mayors). The time served for the state includes the periods specified in Paragraph 1 of Article 42 of the said law, which are calculated according to the Rules for Calculating the Length of Service for the State of Lithuania as approved by the Government of the Republic of Lithuania.

Having established by the disputed legal regulation that additional pay is paid to judges for the years served for the State of Lithuania from 1990 March 11 in the offices specified in the Law on the State Service, the record of work as an advocate is no longer included into the period of the time served, for which additional pay is paid to judges. Thus, according to the petitioners, by means of the disputed legal regulation, for the judges who have the record of work as an advocate, one has decreased the additional pay supplementing their positional salary, which used to be calculated and applied until the entry into force of the Law on the Remuneration of Judges.

While establishing, by the law, the remuneration of judges, the legislator must take account of the constitutional status of the judiciary and that of the judge and may not deny the guarantees of the independence of judges that were received prior to the entry into force of the Law on Remuneration of Judges, inter alia their social guarantees.

The disputed legal regulation, which implies the decrease in additional pay supplementing the positional salary of the judges who have the record of work as an advocate, in the opinion of the petitioners, is in conflict with Article 109 of the Constitution and violates one of the essential elements of the constitutional principle of a state under the rule of law—the principle of legal security, which means that the state has the duty to ensure the certainty and stability of legal regulation, to safeguard the rights of subjects of legal relations, as well as to respect legitimate interests and legitimate expectations. The petitioners have doubts as to whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Paragraph 2 of Article 109 of the Constitution, and, by invoking the official constitutional doctrine of the independence of judges and courts, emphasise that the protection of the remuneration and other social guarantees of judges is one of the requirements that secure the independence of judges. The Kaunas Regional Administrative Court, a petitioner, also has doubts as to whether the disputed legal regulation is not in conflict with Article 29 of the Constitution, since, by excluding the record of work as an advocate from the work record of a judge, one discriminates against judges who have worked as advocates.

  1. The petitions of the Vilnius Regional Administrative Court and the Vilnius District Local Court, the petitioners, regarding the compliance of Paragraph 1 of Article 6 of the Law on Remuneration for Work of Judges with the Constitution are substantiated by the following arguments.

Paragraph 1 of Article 6 of the Law on the Remuneration of Judges prescribes that, for overtime work and work during days off and on holidays while performing the functions of the judge, judges are paid one-time extra pay in the amount not higher than their positional salary, which may not exceed the allocations for work remuneration set for the court in the Republic of Lithuania Law on Approving the Financial Indicators for the State Budget and Municipal Budgets, also that in cases where the said funds are insufficient or where a judge has worked in an institution for less than a full year, the amount of the extra pay is recalculated proportionately to the funds available for work remuneration and the period of time worked in that year.

The petitioners doubt whether such legal regulation is not in conflict with the provision of Article 48 of the Constitution, since the said regulation limits the opportunity of judges to receive remuneration for overtime work and work during days off and on holidays, as it is limited by the size of the positional salary and available funds. Referring to the official constitutional doctrine, the petitioners note that, under the Constitution, there may not be any such situation where the state servant who works during days off and on holidays, as well as at night, in harmful, highly harmful and hazardous conditions, and who performs duties beyond the scope of the normal work load or additional assignments that exceed the established work time would not be paid or where this work would be paid unjustly. The petitioners also have doubts as regards the compliance of Article 6 of the Law on the Remuneration of Judges with Article 29 of the Constitution and point out that the legislator has unreasonably separated judges from other persons (who are even paid increased remuneration for overtime, etc.), also that judges who work in courts of the same instance may receive different pay for work.

In the opinion of the petitioners, the disputed legal regulation is in conflict with the principle of the independence of the judge and courts entrenched in Article 109 of the Constitution, by means of which one seeks to protect judges, who administer justice, from any influence of both legislative and executive power, as well as from that of other state establishments and officials, political and public organisations, commercial economic structures, and other legal and natural persons.

III

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, R. J. Dagys, Chairman of the Seimas Committee on Social Affairs and Labour, wherein it is maintained that Item 2 of Paragraph 2 of Article 4, Paragraph 1 of Article 5 and Paragraph 1 of Article 6 of the Law on the Remuneration of Judges are not in conflict with the Constitution. The position of the representative of the Seimas, the party concerned, is substantiated by the following arguments.

  1. Under the Republic of Lithuania Law on the Bar, the activities of the advocate constitute the provision of legal services. The activities of the advocate are not economic-commercial; however, in assessing the nature of these activities, they may not be treated as service for the State of Lithuania.

If it were recognised that the activities of the advocate are included into the period of the time served for the State of Lithuania, one would have to make an assumption that the judge whose powers have ceased and who has commenced the activities of an advocate could also demand that the period of time of the professional activities as an advocate be included into the work record of the judge. On the other hand, years served for the state or the length of state service are universal notions, as their content is of importance for the regulation of the rights of not only judges, but also those of state servants. If it is presumed that the activities as an advocate need to be included into the period of the time served for the State of Lithuania, then these activities must be also included into the length of service of state servants.

  1. By means of the Law on the Remuneration of Judges one has set, compared to the ones set under the previously valid regulation, higher coefficients of the positional remuneration, which have compensated for the changes in the remuneration of judges. In the explanatory note of the Draft Law on the Remuneration of Judges it is indicated that the new coefficients of the remuneration of the President and justices of the Constitutional Court, which are set in the Law on the Remuneration of Judges, are calculated according to the previous remuneration actually paid to judges prior to the entry into force of this law. The new coefficients of positional salaries of judges of courts of general jurisdiction and specialised courts (the Supreme Court of Lithuania, the Supreme Administrative Court of Lithuania, the Court of Appeal of Lithuania, regional courts, and regional administrative courts) have been set by taking account of the maximum amounts of the remuneration actually paid to judges of courts of the specified systems and levels prior to the entry into force of this law (according to the information submitted by the courts) as well as by assessing the fact that the additional pay is established for judges for the years served for the State of Lithuania, which is paid pursuant to Article 5 of the Law on the Remuneration of Judges. In the explanatory note of the Draft Law on the Remuneration of Judges it is indicated that “the coefficients of positional salaries of judges of local courts (with the exception of Presidents and their deputies) are increased by two points of the coefficient of the positional salary, compared to the actual remuneration currently received”.
  2. The regulation of one-time extra pay—a constituent part of work remuneration of judges—has been more than once amended and harmonised with other provisions of the Republic of Lithuania Law on the Pay for Work of State Politicians, Judges and State Officials and the Republic of Lithuania Law on Courts. The striving to adjust the regulation of the pay for work of judges by paying heed to the rulings of the Constitutional Court, which was mentioned in the explanatory note to the Draft Law on the Remuneration of Judges submitted on 27 May 2008, provided an incentive for the adoption, on 6 November 2008, of the Law on the Remuneration of Judges. For work after working hours and work during days off and on holidays, the Law on Courts provided for the possibility only to be granted additional 14 calendar days of annual leave, therefore, according to R. J. Dagys, by means of the Law on the Remuneration of Judges, one sought to establish a more favourable possibility of compensation compared to that provided for under the previously valid regulation.

According to the duties performed and his specific status, the judge may not be grouped with state servants or employees, his work time should also not be regarded as fixed under the rules of the Labour Code of the Republic of Lithuania, as such regulation is related exclusively with implementation of labour relations of a legal character, whereas judges are subordinate to no one, therefore, fixing the work time of judges would be incompatible with the guarantees of their independence. Thus, while taking account of the said facts, a separate specific procedure has been established to judges for payment of work performed overtime, during days off and on holidays.

The duty to allocate sufficient funds for the remuneration of judges ought to be implemented in the course of considering the State Budget. However, despite the exceptional position of the judiciary and the importance of the constitutional guarantees of the independence of judges, the State Budget is not unlimited and not secured against specific circumstances which determine a difficult economic and financial situation. Namely because of the said fact the procedure for payment of one-time extra pay for overtime work and work during days off and on holidays according to the funds available may not be regarded as a precondition for violation of the independence of judges.

Taking account of the Crisis Management Plan prepared within the programme of the 15th Government of the Republic of Lithuania and of the objective provided for therein to balance fund flows, as well as of a considerable body of amendments of legal acts contributing to the stabilisation of the deficit of the State Budget (the amendments of legal acts involving the provision therein for reduction in the remuneration of employees of institutions and establishments financed from the State Budget, the amendments of legal acts regulating taxes, etc.), a conclusion is to be drawn that namely in such a situation reduction in financing of various areas of state governance may be accounted for objective circumstances.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were submitted and the questions of the justices were answered by the specialists Irma Griškevičiūtė, Head of the Law and Personnel Division of the National Courts Administration, and Vita Aleksandra Gudelevičiūtė, a chief specialist of the Strategic Development Division of the National Courts Administration.

V

  1. At the hearing of the Constitutional Court, the representative of the Seimas, the party concerned, R. J. Dagys, Chairman of the Seimas Committee on Social Affairs and Labour, virtually reiterated the arguments set forth in his written explanations and answered to the questions of the justices.
  2. At the hearing of the Constitutional Court the specialists I. Griškevičiūtė and V. A. Gudelevičiūtė also spoke and answered to the questions put by the justices.

The Constitutional Court

holds that:

I

  1. The Kaunas Regional Administrative Court (petition No. 1B-37/2009) and the Šiauliai Regional Administrative Court (petitions Nos. 1B-39/2009 and 1B-40/2009), the petitioners, request investigation into whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 109 of the Constitution and the constitutional principle of a state under the rule of law.
  2. The Vilnius Regional Administrative Court (petition No. 1B-34/2010), a petitioner, requests investigation into whether Paragraph 1 of Article 5 of the Law on the Remuneration of Judges is not in conflict with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, also whether Paragraph 1 of Article 6 of the Law on the Remuneration of Judges is not in conflict with Articles 29 and 48 of the Constitution.
  3. The Vilnius District Local Court (petition No. 1B-64/2010), a petitioner, requests investigation into whether Paragraph 1 of Article 6 of the Law on the Remuneration of Judges is not in conflict with Articles 29, 48 and 109 of the Constitution and the constitutional principle of a state under the rule of law.
  4. The Kaunas Regional Administrative Court (petition No. 1B-74/2010), a petitioner, requests investigation into whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.
  5. The Vilnius Regional Administrative Court, the Vilnius District Local Court and the Kaunas Regional Administrative Court, the petitioners, request investigation into the compliance of certain provisions of the Law on the Remuneration of Judges with inter alia the entire Article 29 of the Constitution, however, from the arguments of the petitions it is clear that the petitioners doubt whether the disputed provisions of the Law on the Remuneration of Judges are not in conflict with inter alia Paragraph 1 of Article 29 of the Constitution.
  6. The Vilnius Regional Administrative Court and the Vilnius District Local Court, the petitioners, request investigation into the compliance of certain provisions of the Law on the Remuneration of Judges with inter alia the entire Article 48 of the Constitution, however, from the arguments of the petitions it is clear that the petitioners doubt whether the disputed provisions of the Law on the Remuneration of Judges are not in conflict with inter alia the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution.
  7. The Kaunas Regional Administrative Court, the Šiauliai Regional Administrative Court and the Vilnius District Local Court, the petitioners, request investigation into the compliance of certain provisions of the Law on the Remuneration of Judges with inter alia the entire Article 109 of the Constitution, however, from the arguments of the petitions it is clear that the petitioners doubt whether the disputed provisions of the Law on the Remuneration of Judges are not in conflict with inter alia Paragraph 2 of Article 109 of the Constitution.
  8. It needs to be noted that from the arguments presented by the petitioners it is clear that they doubt whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with the Constitution inasmuch as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania.

In addition, it needs to be noted that from the arguments of the petitioners it is clear that they doubt whether Paragraph 1 of Article 6 of the Law on the Remuneration of Judges is not in conflict with the Constitution inasmuch as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays.

  1. Taking account of the arguments presented in the aforementioned petitions, in the constitutional justice case at issue, the Constitutional Court will investigate whether:

– Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law;

– Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is not in conflict with Paragraph 1 of Article 29 of the Constitution, the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 and Paragraph 2 of Article 109 thereof, as well as with the constitutional principle of a state under the rule of law.

  1. In this context it needs to be noted that, under the Constitution, the Constitutional Court must ensure the supremacy of the Constitution in the legal system. The Constitutional Court administers constitutional justice while investigating whether the laws and other acts of the Seimas, the acts of the President of the Republic and the Government are not in conflict with the Constitution. The Constitution does not provide that the Constitutional Court is permitted not to consider certain laws or other legal acts. Thus, the Constitutional Court has the powers to and must investigate the compliance, with the Constitution, of all the legal acts pointed out in Paragraph 1 of Article 102 of the Constitution, inter alia including those whereby the social (material) guarantees of judges of all courts of the Republic of Lithuania are established (Constitutional Court ruling of 29 June 2010).

II

  1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court will investigate the compliance of certain provisions of the Law on the Remuneration of Judges with inter alia the constitutional principle of a state under the rule of law.

1.1. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution itself are based, that the constitutional principle of a state under the rule of law is to be construed inseparably from the striving for an open, just and harmonious civil society and a state under the rule of law, which is declared in the Preamble to the Constitution, and that the content of the aforementioned constitutional principle reveals itself in various provisions of the Constitution. The essence of the constitutional principle of a state under the rule of law is the rule of law. The constitutional imperative of the rule of law means that the freedom of state power is limited by law, which must be obeyed by all the entities of legal relations, including the law-making entities. It needs to be emphasised that the discretion of all the law-making entities is limited by the supreme law—the Constitution. All the legal acts and decisions of all the state and municipal institutions and officials must be in compliance with and not contradicting to the Constitution.

The constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The constitutional principle of a state under the rule of law must be followed both in law-making and implementation of law (Constitutional Court rulings of 6 December 2000, 13 December 2004, 16 January 2006, 13 August 2007, decision of 20 April 2010 and ruling of 29 June 2010). The compliance of each institute of law with the Constitution must be evaluated according to how this institute is in compliance with the constitutional principle of a state under the rule of law (Constitutional Court rulings of 11 May 1999, 13 December 2004, 29 June 2010 and decision of 20 April 2010).

1.2. The Constitutional Court has held more than once that inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. The constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply a duty of the state to guarantee the certainty and stability of legal regulation, to safeguard the rights of persons, as well as to respect legitimate interests and legitimate expectations (Constitutional Court rulings of 12 July 2001, 5 November 2002, 4 March 2003, 17 March 2003, 24 December 2008, decision of 20 April 2010, and ruling of 29 June 2010). These principles inter alia imply that the state must fulfil all its undertaken obligations to the person. As it has been held by the Constitutional Court, if the protection of legitimate expectations, legal certainty, and legal security were not ensured, the trust of the person in the state and law would not be secured (Constitutional Court ruling of 29 June 2010).

1.3. The constitutional principle of a state under the rule of law is also inseparable from the principle of equal rights of persons consolidated inter alia in Article 29 of the Constitution (Constitutional Court rulings of 14 April 2006, 22 March 2010 and 29 June 2010).

The Constitutional Court has held more than once that the constitutional principle of equality of persons must be followed in the course of both enactment of laws and their application; the constitutional principle of equality of persons before the law means an innate human right to be treated equally with the others (Constitutional Court rulings of 2 April 2001, 23 April 2002, 4 March 2003, 4 July 2003, 3 December 2003, 10 November 2005, 24 December 2008, 3 February 2010, 22 March 2010, decision of 20 April 2010, and ruling of 29 June 2010) and obliges to assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner (Constitutional Court decision of 20 April 2010 and ruling of 29 June 2010).

The constitutional principle of equal rights of persons does not in itself deny an opportunity to establish diverse and differentiated legal regulation by means of legislation with respect to certain persons that belong to different categories, if there are differences between these persons of such a character that objectively justify such differentiated regulation. Differentiated legal regulation, when it is applied to certain groups of persons that are distinguished by the same signs, and in case it strives for positive and socially meaningful goals, or if the establishment of certain limitations or conditions is linked with peculiarities of regulated social relations, is not in itself to be regarded as discrimination (Constitutional Court rulings of 11 November 1998, 13 May 2005, 31 May 2006, 2 March 2009, 29 April 2009, decision of 20 April 2010, and ruling of 29 June 2010).

The Constitutional Court has held more than once that the constitutional principle of equality of all persons before the law would be violated when a certain group of people to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in the character and extent between these groups so that such an uneven treatment would be objectively justified. While assessing whether an established different legal regulation is a grounded one, particular legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered (Constitutional Court rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, 2 March 2009, 8 June 2009, decision of 20 April 2010, and ruling of 29 June 2010). The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances (Constitutional Court rulings of 4 July 2003, 24 December 2008, 2 March 2009, 8 June 2009, decision of 20 April 2010, and ruling of 29 June 2010).

  1. As mentioned, in the constitutional justice case at issue the Constitutional Court will investigate the compliance of Paragraph 1 of Article 6 of the Law on the Remuneration of Judges with inter alia the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution.

2.1. In its rulings of 13 December 2004 and 11 December 2009, the Constitutional Court held that the right of each citizen to receive fair pay for work, which is entrenched in Paragraph 1 of Article 48 of the Constitution, is a precondition for implementation of many other constitutional rights, inter alia it is one of the most important preconditions for implementation of the right of ownership entrenched in Article 23 of the Constitution; under the Constitution, a right appears in regard to the person who has completed a commissioned task to demand that the whole work remuneration (remuneration) which is due according to the legal acts be paid to him, and that it be paid in due time; thus, work remuneration of state servants must be also paid within the time established by laws; this right of the person is guaranteed, protected and defended as the right of ownership; according to the Constitution, a legal situation, where a state servant, who fulfilled the assigned task, is not paid, is paid not in due time or is paid less than it is due according to the laws and other legal acts passed on the basis of the former, is impermissible.

2.2. The Constitutional Court has also held more than once (inter alia in its rulings of 18 December 2001, 13 December 2004 and 11 December 2009) that:

– the right to fair pay for work guaranteed in the Constitution is directly related to the principle of equality of all persons before the law, the court, and other state institutions; it is prohibited to diminish one’s remuneration for work on the basis of one’s sex, race, nationality, citizenship, political convictions, one’s attitude towards religion, and other circumstances not related to the professional characteristics of the employee, if the functions of work of the employee, the scope of his work, etc. have not been changed;

– the constitutional right to fair pay for work is also connected with one of the elements of the constitutional principle of a state under the rule of law, i.e. with the constitutional principle of the protection of legitimate expectations; in cases when certain pay for work has been established for a state servant (or other employee) by legal acts, then this pay must be paid throughout the duration of the established time; state servants (and other employees) have the right to reasonably expect that the rights acquired under the valid legal acts will be retained for the established period of time and will be implemented in reality; the legal regulation may be changed only by following the procedure established in advance and by not violating the principles and norms of the Constitution; it is necessary inter alia to follow the principle lex retro non agit; it is not permitted to deny the legitimate interests and legitimate expectations of the person by the changes of the legal regulation;

– the constitutional principle of the protection of legitimate expectations does not mean that the remuneration for work paid to state servants from the funds of the State Budget or municipal budget may not be reduced at all, however, this may be done only in exceptional cases and only if it is necessary in order to protect the values consolidated in the Constitution; even in such exceptional cases the pay for work may not be reduced in violation of the balance entrenched in the Constitution between the interests of a person and those of the society; the pay for work may not be reduced only for separate categories of employees who are paid for their work from the funds of the State Budget or municipal budget; the reduction in the pay for work must be in line with the constitutional principle of proportionality; the legislator must keep the balance between the rights and legitimate interests of the persons, to whom the less favourable legal regulation is established, and the interests of society and the state.

2.3. In its decision of 20 April 2010, the Constitutional Court noted that the Constitution does not tolerate any such situations where the remuneration of state servants, when there is a difficult economic and financial situation in the state, are reduced disproportionately, inter alia in a manner, where the amount of the remuneration of a state servant of high qualification, who performs a complex job, is approximated to the remuneration of a state servant of lower qualification, who performs a less complex job, or where the former remuneration is even equalised with the latter, or where the remuneration of state servants of certain groups is reduced by taking account of not the entire pay for work received, but only of individual constituent parts of the work remuneration of state servants, etc. In such situations not only the constitutional principles of proportionality, equal rights and justice would be denied, but also one would deviate from the constitutional concept of the state service as well as the provision of Paragraph 1 of Article 48 of the Constitution consolidating the human right to receive fair pay for work.

2.4. In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution, inter alia Paragraph 1 of Article 48 thereof, there may not be any such situation where the judge who discharges the functions specified in the Code of Criminal Procedure of the Republic of Lithuania, the Code of Civil Procedure of the Republic of Lithuania and other laws, which must be performed after working hours, during days off and on holidays, would be not paid or would not be paid for the said work in a fair manner.

2.5. It also needs to be noted that heads of courts (their deputies, chairmen of divisions, etc.) must organise work of the courts, inter alia work after working hours, work during days off and on holidays, so that the allocations set for the remuneration of judges would be used rationally.

  1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court will investigate whether the disputed provisions of the Law on the Remuneration of Judges are not in conflict with inter alia Paragraph 2 of Article 109 of the Constitution, wherein it is provided that, while administering justice, the judge and courts are independent.

3.1. In its acts the Constitutional Court has formulated a broad official constitutional doctrine of the independence of the judge and courts, wherein the constitutional imperative of the independence of the judge and courts is construed in the context of the constitutional principle of a state under the rule of law (which, as the Constitutional Court has held in its acts more than once, integrates various values consolidated in and protected and defended by the Constitution and which grounds the whole legal system of Lithuania and the Constitution itself) (Constitutional Court rulings of 22 October 2007 and 29 June 2010).

3.2. The function of administering justice determines an exceptional constitutional status of the judge, which is disclosed by various constitutional provisions that consolidate not only the independence of the judge and courts while administering justice (Paragraph 2 of Article 109 of the Constitution), but also the impossibility for the judge to hold any other elected or appointed office, to work in any business, commercial or other private establishments or enterprises, to receive any remuneration other than the remuneration established for the judge and the pay for educational or creative activities, or to take part in the activities of political parties and other political organisations (Article 113 of the Constitution), the prohibition to interfere with the activities of the judge, the inviolability of the person of the judge (Article 114 of the Constitution), etc. Under Article 104 of the Constitution, the limitations on work and political activities that are established for court judges also apply to justices of the Constitutional Court (Paragraph 3) and justices of the Constitutional Court have the same rights concerning the inviolability of their person as Members of the Seimas (Paragraph 4). It needs to be emphasised that the independence of the judge and courts is not an end in itself, but one of the essential principles of a democratic state under the rule of law and a necessary condition for protection of human rights and freedoms. While administering justice, the courts must ensure the implementation of law which is expressed in the Constitution and the laws and other legal acts that are not in conflict with the Constitution (Constitutional Court rulings of 22 October 2007 and 29 June 2010).

3.3. The Constitutional Court has held more than once that the courts that under the Constitution execute judicial power in Lithuania are to be attributed not to one, but to two or more (if this, while heeding the Constitution, is established in certain laws) systems of courts; under the Constitution and laws, at present in Lithuania there are three systems of courts: 1) the Constitutional Court executes constitutional judicial control; 2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and local courts, specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction; 3) under Paragraph 2 of Article 111 of the Constitution, for consideration of administrative, labour, family, and cases of other categories specialised courts may be established. One system of specialised courts, namely, that of administrative ones, which is composed of the Supreme Administrative Court of Lithuania and regional administrative courts, is established by laws and is functioning at present (Constitutional Court rulings of 13 December 2004, 16 January 2006, 28 March 2006, 9 May 2006 and 6 June 2006).

3.4. The independence of the judge and courts is indivisible (Constitutional Court rulings of 21 December 1999, 22 October 2007 and 29 June 2010). One of the important aspects of the independence of the judge entrenched in the Constitution is that, while administering justice, all the judges have equal legal status, inter alia in the aspect that no different guarantees of the independence of the judge while administering justice (deciding cases) may be established; while administering justice, no judge is, nor may be subordinate to any other judge or to the President of any court (inter alia of the court where he works or of the court of a higher level or instance); on the other hand, the principle of the equal legal status of judges does not mean that the material and social guarantees of judges may not be differentiated under clear, ex ante known criteria, which are not related to the administration of justice while deciding cases (for example, according to the length of a person’s work as a judge) (Constitutional Court rulings of 9 May 2006, 22 October 2007, decision of 20 April 2010, and ruling of 29 June 2010).

In its ruling of 22 October 2007, the Constitutional Court held that the social (material) guarantees of judges may be differentiated (by heeding the Constitution) according to the criteria not connected with the administration of justice while deciding cases, as for example, according to the duration of a person’s position as a judge. However, this does not at all mean that the criterion of the duration of a person’s position as a judge may be replaced by other, essentially different criterion: for example, where legal acts establish a certain calendar date (naming it directly, or relating it to any legal fact, such as, for instance, the coming into force of a certain legal act) and where the person begins to work as a judge from that date, or his powers expire, that certain social (material) guarantees which are established (applied) to him would be different from those established (applied) to other judges of the courts of the same system and of the courts of the same level (of the courts of general jurisdiction and the specialised courts established under Paragraph 2 of Article 111 of the Constitution). Thus, one may not differentiate (also by applying law) the remuneration of judges of the courts of the same system and of the same level according to the fact when the remuneration of judges of a certain size was established (inter alia according to the fact, whether the person began to work as a judge of the corresponding court before establishing the remuneration of a certain size for judges of that court, or afterwards).

The principle of the equal legal status of judges which stems from the Constitution may not also be construed as not permitting to additionally pay the judges—the heads of courts (their deputies, chairmen of divisions, etc.)—who perform additional functions for the corresponding organisational work carried out: supplementary work must be paid for additionally (Constitutional Court rulings of 22 October 2007 and 29 June 2010).

In this context it needs to be noted that, under the Constitution, inter alia the principle of the equal legal status of judges, the principles for setting the remuneration of judges (whatever the system of the courts they belong to), inter alia constituent parts thereof, must be the same.

3.5. The Constitutional Court has noted more than once that the independence of the judge and courts is not a privilege, but one of the most important obligations of the judge and courts, which stems from the right of the person, who believes that his rights or freedoms guaranteed in the Constitution are violated, to an impartial arbiter of the dispute who would solve the emerged legal dispute in accordance with the Constitution and laws in essence (Constitutional Court rulings of 6 December 1995, 21 December 1999, 12 July 2001, 9 May 2006, 22 October 2007 and 29 June 2010). The independence of the judge is inter alia ensured by consolidating self-governance of the judiciary, meaning that the judiciary is a full-fledged power, and its financial and technical provision, and by establishing the inviolability of the term of powers of the judge (whereby one seeks to ensure that the judge, irrespective of the political forces in power, would remain independent and would not be forced to adjust according to the possible changes of political forces) and the inviolability of the person of the judge, as well as by establishing the social (material) guarantees of the judge (Constitutional Court ruling of 22 October 2007).

3.6. In this context it also needs to be noted that the judge, who is obligated to consider conflicts arising in society as well as those between a person and the state, must be not only highly professionally qualified and of impeccable reputation, but also materially independent and feel secure as to his future (Constitutional Court rulings of 12 July 2001, 22 October 2007 and 29 June 2010). The constitutional imperative of the constitutional protection of remuneration and other social (material) guarantees of the judge arises from the principle of the independence of the judge and courts established in the Constitution (inter alia Article 109 thereof). By this principle one attempts to protect the judges who administer justice from any influence of the legislative and executive power, as well as from that of other state establishments and officials, political and public organisations, commercial economic structures, and other legal and natural persons. In its rulings of 12 July 2001, 22 October 2007 and 29 June 2010, the Constitutional Court also held that the state has a duty to establish such remuneration for judges which would be in conformity with the status of the judiciary and the judge, with the functions exercised by them and their responsibility.

3.7. In its decisions of 12 January 2000 and 8 August 2006, the Constitutional Court noted that the notion “remuneration of the judge” includes all the payments paid to a judge from the State Budget. In the context of the constitutional justice case at issue it needs to be noted that the legislator, while regulating the relations connected with the establishment of the remuneration of judges, may establish that remuneration—a social (material) guarantee of the judge—is comprised of not one, but several constituent parts, inter alia the positional salary, additional pay and extra pay. It also needs to be noted that, under the Constitution, reduction in some constituent part of the remuneration of the judge by raising other constituent part of the remuneration of the judge, where the remuneration itself of the judge does not decrease, does not mean the reduction in the remuneration of the judge as a social (material) guarantee of the judge.

3.8. The principle of the equal legal status of judges which stems from the Constitution implies that the judges of the same system of courts and the judges of the courts of the same level are equal not only according to their powers while administering justice (deciding cases) and their non-subordination to any other judge or President of any court (inter alia of the court in which they work, as well as of a court of a higher level or instance), the responsibility and immunities, the restrictions of their activities and limitation on their remuneration provided for in Article 113 of the Constitution, but also according to the fact that an equal amount of their work must be ensured; thus, the judges of the same system of courts and the judges of the courts of the same level must be paid for the corresponding work correspondingly, without discriminating any of them and without applying privileges to any of them, and the corresponding social (material) guarantees—non-discriminatory and not to be equated to privileges—must be established for them.

3.9. The Constitution also prohibits reduction in remuneration and other social (material) guarantees of judges; any attempts to reduce the remuneration of the judge or his other social (material) guarantees, or limitation upon financing of courts are treated as encroachment upon the independence of judges and courts (Constitutional Court rulings of 6 December 1995 and 21 December 1999, decision of 12 January 2000, rulings of 12 July 2001 and 28 March 2006, and decision of 8 August 2006). As every person, a judge has the right to defend his rights, legitimate interests and legitimate expectations (Constitutional Court rulings of 12 July 2001 and 22 October 2007).

3.10. The social (material) guarantees of the principle of the independence of the judge, which stem from the Constitution (and which are actually consolidated in the law of other democratic states, as well as in various international acts), mean that the state has a duty to ensure such social (material) maintenance for the judge which would be in conformity with his status while being in office as well as upon expiry of his term of office (Constitutional Court rulings of 21 December 1999, 22 October 2007 and 29 June 2010). Under the Constitution, the material and social guarantees established for judges must be such so that they would be in line with the constitutional status of the judge and his dignity (Constitutional Court decision of 8 August 2006, rulings of 22 October 2007 and 29 June 2010).

It needs to be noted that the legislator must establish such legal regulation that would ensure the independence of the judge and courts, inter alia the social (material) guarantees of the judge, not only when he is in office, but also upon expiry of his powers; while doing so, the legislator must heed the norms and principles of the Constitution; upon expiry of powers of the judge, the social (material) guarantees of the judge may be varied ones, inter alia payments paid periodically, one-time payments, etc.; the constitutional base for establishing such guarantees is an exceptional constitutional status of the judge, which is determined by the function of administering justice, therefore, they may depend only upon the circumstances that are related with the constitutional status of a judge, but they may not be considered as replacing other social (material) guarantees that must be ensured to the former judge on different bases, including those common to all the working persons; the social (material) guarantees of the judge, upon expiry of his powers, must be real and not only nominal (Constitutional Court rulings of 22 October 2007 and 29 June 2010).


III

  1. On 29 November 1991, the Government of the Republic of Lithuania adopted Resolution No. 499 “On the Temporary Experimental Procedure for the Pay for Work of Heads and Other Officials of State Power, State Governance and Law Enforcement Bodies”, by means of which it laid down the temporary experimental procedure for the pay for work of heads and other officials of state bodies who implement the functions of state power, state governance and law enforcement. By the said resolution one approved the service remuneration of judges and additional pay to them for qualification classes, also it was established that for work deviating from normal conditions and work performed overtime, at night, during days off and on holidays heads and other officials of state bodies are additionally paid the minimum extra pay, as approved by the Republic of Lithuania Law on the Pay for Work, from the finances of the fund for the pay for work pursuant to the procedure laid down in laws and normative acts of the Republic of Lithuania.

This Government resolution has been amended more than once.

  1. On 6 February 1992, the Seimas adopted the Law on Courts. Article 46 of this law provided that the remuneration of judges and the amounts of additional pay supplementing their remuneration are set by the Presidium of the Supreme Council of the Republic of Lithuania.
  2. On 20 July 1992, the Presidium of the Supreme Council adopted Resolution No. I-2755 “On the Service Remuneration of and Additional Pay to Judges of the Republic of Lithuania”, by means of which it set extra pay to judges of courts supplementing service remuneration thereof for the years served. Under the said resolution, the period of years served by the judge included work as a prosecutor, investigator, advocate and notary, as well as legal pedagogical work of persons possessing a scientific degree.

Thus, under the aforesaid resolution, when calculating the extra pay supplementing the service remuneration of judges for the years served, the period of work as an advocate was included. The said extra pay was calculated in accordance with the Annex “The Additional Pay for the Time Served Supplementing the Service Remuneration of Judges” of the resolution, which provided for the additional pay of 10–35 percent.

The resolution stipulated that the said conditions of the pay for work shall come into force on 1 November 1992.

  1. On 3 February 1993, the Seimas adopted the Republic of Lithuania Law “On the Service Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the State Control Department of the Republic of Lithuania”, wherein it was established that until respective laws are specified the service remuneration of judges of courts, employees of the Prosecutor’s Office, state arbiters, and employees of the State Control Department shall be established by the Government of the Republic of Lithuania.
  2. On 3 February 1993, the Seimas adopted the Law on the Constitutional Court, which came into force on 7 February 1993. Article 16 of this law stipulated that a justice of the Constitutional Court shall be paid the remuneration of the amount higher by 30 percent than the maximum remuneration of the justice of the Supreme Court, and the President of the Constitutional Court or a justice temporarily holding the office of the President shall be paid the remuneration of the amount higher by 10 percent than the remuneration of the justice of the Constitutional Court. Thus, the relations connected with the establishment of the remuneration of justices of the Constitutional Court, as from 7 February 1993, in a certain aspect, were regulated not by Government resolutions, but by the law.
  3. On 3 March 1993, the Government adopted Resolution No. 124 “On the Pay for Work of Employees of Courts, the State Arbitration, the Prosecutor's Office, and the State Control Department of the Republic of Lithuania”, by means of which it increased, by 35 percent, the coefficients of the service remuneration of judges, which had been set by Resolution of the Presidium of the Supreme Council No. I-2755 “On the Service Remuneration of and Additional Pay to Judges of the Republic of Lithuania” of 20 July 1992, and also established that the additional pay for the years served, which had been approved by the aforesaid resolution, shall be continued to be paid to judges. The 3 March 1993 Government Resolution No. 124 “On the Pay for Work of Employees of Courts, the State Arbitration, the Prosecutor’s Office, and the State Control Department of the Republic of Lithuania” also entitled officials and other employees of courts, the state arbitration, the Prosecutor’s Office and the State Control Department to conditions of the additional pay for work, as provided for in the 29 November 1991 Government Resolution No. 499 “On the Temporary Experimental Procedure for the Pay for Work of Heads and Other Officials of State Power, State Governance and Law Enforcement Bodies”.

This Government resolution has been subject to amendments and supplements, however, no changes of significance to the constitutional justice case at issue have been made.

  1. On 3 February 1994, the Government adopted Resolution No. 74 “On the Pay for Work of Officials of Courts, the Prosecutor’s Office, the State Arbitration, the Security Service, Systems of Internal Affairs, and State Control of the Republic of Lithuania”, by means of which it increased, by 60 percent, inter alia the maximum amounts of the schemes of the service remuneration of judges, without exceeding the funds allocated for the pay for work in the Lithuanian State Budget of 1994.

This Government resolution has been subject to amendments and supplements, however, no changes of significance to the constitutional justice case at issue have been made.

  1. On 24 June 1997, the Government adopted Resolution No. 666 “On the Pay for Work of Judges of Courts, Officials and Other Employees of the System of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania”, by means of which the service remuneration of judges of courts was approved. This resolution also established the additional pay supplementing the service remuneration of judges for the time served. The period of years served by the judge included the period of work as a prosecutor, investigator, advocate and notary, also the period of legal pedagogical work (of persons possessing a scientific degree). In the annex of the resolution it was provided for the additional pay of 10–75 percent supplementing the service remuneration of judges for the time served.

It also needs to be mentioned that upon the adoption of the said resolution the following inter alia became no longer valid: Government Resolution No. 124 “On the Pay for Work of Employees of Courts, the State Arbitration, the Prosecutor’s Office and the State Control Department of the Republic of Lithuania” of 3 March 1993 and Item 1 of Government Resolution No. 74 “On the Pay for Work of Officials of Courts, the Prosecutor’s Office, the State Arbitration, the Security Service, Systems of Internal Affairs, and the State Control of the Republic of Lithuania” of 3 February 1994, whereby inter alia the maximum amounts of the schemes of the service remuneration of judges had been increased by 60 percent.

  1. On 30 June 1997, the Government adopted Resolution No. 689 “On the Pay for Work of Chief Officials and Officers of Law and Order, Law Enforcement, and Control Institutions”, by means of which it was resolved, without exceeding the fund for work remuneration, to increase, by 2.5 times, the service remuneration (coefficients) set by Government resolutions to the President, chairmen of divisions and judges of the Supreme Court of Lithuania, to the President, chairmen of divisions and judges of the Court of Appeal of Lithuania, to Presidents, chairmen of divisions and judges of regional courts, and to Presidents and their deputies of city and district local courts. This resolution was applied as from 1 July 1997.
  2. On 28 December 1999, the Government adopted Resolution No. 1494 “On the Partial Amendment of Government of the Republic of Lithuania Resolution No. 689 ‘On the Pay for Work of Chief Officials and Officers of Law and Order, Law Enforcement, and Control Institutions’ of 30 June 1997”, whereby service remuneration (coefficients) was reduced from 2.5 to 1.75 times and it was established that, as from 1 January 2000, service remuneration is calculated by applying the coefficient of 1.75.
  3. On 23 December 1999, the Minister of Justice of the Republic of Lithuania adopted Order No. 370 “On Additional Pay Supplementing Service Remuneration”, by means of which, from 3 January 2000 to 31 December 2000, additional pay supplementing service remuneration was established for judges of local courts in the amount of 40 percent.
  4. On 29 August 2000, the Seimas adopted the Republic of Lithuania Law on the Pay for Work of State Politicians, Judges and State Officials. This law set the amounts of work remuneration and the conditions of payment thereof to the state politicians, judges and state officials to whom the Republic of Lithuania Law on the State Service does not apply.

The work remuneration set by the Law on the Pay for Work of State Politicians, Judges and State Officials had to be paid to state politicians, judges and state officials as from 1 January 2006 (it needs to be mentioned that by Article 2 of the Republic of Lithuania Law on Amending Article 7 of the Law on the Pay for Work of State Politicians, Judges and State Officials, which was adopted by the Seimas on 27 March 2001, the formulation “as from 1 January 2006” was replaced by the formulation “after the completion of the transitional period”). Prior to that date, when calculating work remuneration of state politicians, judges and state officials one had to apply the provisions of the transitional period, under which the work remuneration paid till 1 January 2001 had to be approximated to the one provided for under the Law on the Pay for Work of State Politicians, Judges and State Officials in a consistent manner.

  1. Paragraph 2 of Article 2 of the Law on the Pay for Work of State Politicians, Judges and State Officials entrenched that the amounts of work remuneration and the conditions of payment thereof set by this law are applied to judges of the Constitutional Court, the Supreme Court of Lithuania, the Court of Appeal of Lithuania, the Higher Administrative Court, regional courts, regional administrative courts, and city and district local courts. Thus, the aforesaid law was intended inter alia for the regulation of legal relations of the remuneration of judges of all the systems of courts.
  2. Article 3 of the said law inter alia provided that work remuneration of judges, i.e. judges of all the systems of courts, shall be comprised of the positional salary, additional pay for the years served for the State of Lithuania, and one-time extra pay.

14.1. It needs to be noted that the Law on the Pay for Work of State Politicians, Judges and State Officials entrenched a new institute—the additional pay for the years served for the State of Lithuania. In this context it needs to be mentioned that prior to the entry into force of this law the sub-statutory legal acts regulating the relations of the remuneration of judges consolidated the additional pay for qualification classes, extra pay supplementing the service remuneration for the years served, additional pay for the years served and additional pay for the time served. After establishing, by the aforesaid law, the additional pay for the years served for the State of Lithuania, the additional pay paid to judges prior to the adoption of this law was no longer provided for.

Article 5 “Additional Pay for the Years Served for the State of Lithuania” of the Law on the Pay for Work of State Politicians, Judges and State Officials provided that state politicians, judges and state officials are paid the additional pay for the years served for the State of Lithuania from 11 March 1990 in state and municipal institutions or establishments in the offices of state servants of public administration and state servants of ‘A’ and ‘B’ levels, as well as in the offices specified in Items 1-6 of Paragraph 3 of Article 4 of the Law on the State Service.

In the context of the case at issue it needs to be noted that, under the Law on the Pay for Work of State Politicians, Judges and State Officials, the period of work as an advocate was not included into the period of years served for the State of Lithuania and it had no influence upon the amount of the additional pay for the years served for the State of Lithuania.

14.2. Article 6 of the Law on the Pay for Work of State Politicians, Judges and State Officials prescribed the following procedure for granting one-time extra pay: “At the end of the year, for overtime work and work during days off and on holidays, judges and state officials shall be paid one-time extra pay in the amount of not higher than their positional salary. The said extra pay shall be paid by not exceeding the funds allocated for work remuneration of judges or state officials under the procedure provided for in legal acts. In cases where these funds are insufficient, also where a judge or state official has worked in an institution for less than a full year, the amount of extra pay shall be recalculated proportionately to the funds available for work remuneration or the period of time worked in that year.”

  1. Article 7 of the Law on the Pay for Work of State Politicians, Judges and State Officials prescribed the following procedure for implementing the law. State politicians, judges and state officials were subject to the transitional period, during which work remuneration had to be reached gradually and during which the work remuneration due to a state politician, judge or state official was calculated every month according to the formulas provided for in the law. During the transitional period, work remuneration for the persons elected or appointed to the office of a state politician, judge and state official was also set and calculated according to the provided formulas.
  2. It needs to be noted that the Law on the Pay for Work of State Politicians, Judges and State Officials adopted by the Seimas on 29 August 2000, which established the remuneration of judges, meant that upon its entry into force the commission for the Government to set the remuneration of judges, which had been prescribed by the Law “On the Service Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters, and Employees of the State Control Department of the Republic of Lithuania” adopted on 23 February 1993, lost its validity. Considering the fact that the Law on the Pay for Work of State Politicians, Judges and State Officials regulated the relations of the remuneration of judges differently than the Government resolutions, the legal regulation laid down by the 29 November 1991 Government Resolution No. 499 “On the Temporary Experimental Procedure for the Pay for Work of Heads and Other Officials of State Power, State Governance and Law Enforcement Bodies”, the 24 June 1997 Government Resolution No. 666 “On the Pay for Work of Judges of Courts, Officials and Other Employees of the System of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” and the 28 December 1999 Government Resolution No.1494 “On the Partial Amendment of Government of the Republic of Lithuania Resolution No. 689 ‘On the Pay for Work of Chief Officials and Officers of Law and Order, Law Enforcement, and Control Institutions’ of 30 June 1997” became no longer valid.
  3. On 12 July 2001, the Constitutional Court adopted the ruling wherein it was recognised that inter alia Item 1 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001) of Paragraph 3 of Article 7, Paragraph 5 (wordings of 29 August 2000 and 27 March 2001) of Article 7 of the Law on the Pay for Work of State Politicians, Judges and State Officials, the provision of Paragraph 6 of Article 7 of the same law establishing the transitional period, and Chapter II entitled “Positional Salaries of Judges” of the Appendix to the same law, to the extent that one had established therein reduction in work remuneration of the judges whose work remuneration is bigger than the work remuneration of judges established in this law, were in conflict with the Constitution; Paragraph 4 of Article 7 of the aforesaid law, to the extent that it had established that work remuneration of the persons appointed to the office of a judge during the transitional period was set and calculated according to those provisions and formulas of Article 7 of this law that provided for reduction in the remuneration of judges, was in conflict with the Constitution.

In the said ruling the Constitutional Court decided to dismiss the instituted proceedings regarding the compliance of the 29 November 1991 Government Resolution No. 499 “On the Temporary Experimental Procedure for the Pay for Work of Heads and Other Officials of State Power, State Governance and Law Enforcement Bodies”, the 24 June 1997 Government Resolution No. 666 “On the Pay for Work of Judges of Courts, Officials and Other Employees of the System of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” and the 28 December 1999 Government Resolution No.1494 “On the Partial Amendment of Government of the Republic of Lithuania Resolution No. 689 ‘On the Pay for Work of Chief Officials and Officers of Law and Order, Law Enforcement, and Control Institutions’ of 30 June 1997”, since the established legal regulation was no longer valid.

  1. On 24January2002, the Seimas adopted the Law on Amending the Law on Courts, by means of which it set forth the Republic of Lithuania Law on Courts in a new wording. The law of the new wording came into force on 1 May 2002. Article 97 “Work Record of the Judge” (wording of 24January2002) of the Law on Courts prescribes that the work record of the judge is calculated from the day of his appointment to any judicial office (Paragraph 1); for the purpose of calculating additional pay to the judge, the duration of his annual leave and the amount of his pension, the work record of the judge shall also include the record of his work as a justice of the Constitutional Court of the Republic of Lithuania, a prosecutor, a deputy prosecutor, an investigator of the Prosecutor’s Office and a state arbiter, the record of his work in the state service, and the record of pedagogical work of the persons possessing the academic degrees of doctor or habilitated doctor of social sciences in the field of law (Paragraph 2).

In addition, it also needs to be mentioned that Paragraph 2 (wording of 2002 January 24) of Article 96 “Work Remuneration of Judges” of the Law on Courts prescribed that “During the judge’s tenure it shall be prohibited to reduce his work remuneration, with the exception of the cases provided for by this Law, or any other social guarantees”.

  1. On 14 March 2002, the Seimas adopted the Republic of Lithuania Law on the Entry into Force and Implementation of the Law on Amending the Law on Courts, Article 8 “Calculation of the Work Record of Judges” (it came into force on 1 May 2002) whereof prescribed:

“1. The rule established in Paragraph 1 of Article 97 of the Law on Courts whereby the work record of the judge is calculated from the day of his appointment to any judicial office shall be also applicable to the judges of any international court appointed or elected from Lithuania.

  1. The requirement set in Paragraph 1 of Article 100 of the Law on Courts whereby one must have worked for the last five years prior to retirement as a judge shall be also met by the judges of any international court appointed or elected from Lithuania.
  2. The work record of the judge indicated in Paragraph 2 of Article 97 and Paragraph 1 of Article 100 of the Law on Courts shall also include the record of work as an advocate. When including the record of work as an advocate for the purpose of calculation and payment of the pension of the judge, one must apply the conditions set in Paragraph 1 of Article 100 of the Law on Courts.”

Thus, after the entry into force of the Law on Courts and the Law on the Entry into Force and Implementation of the Law on Amending the Law on Courts of new wordings, for the purpose of calculating additional pay to the judge, the work record of the judge also began to include the period of work as an advocate.

  1. On 2 July 2002, the Seimas adopted the Republic of Lithuania Law on Amending Articles 97 and 100 of the Law on Courts, by Article 1 whereof it amended Paragraph 2 of Article 97. Paragraph 2 (wording of 2 July 2002) of Article 97 of the Law on Courts prescribed that “for the purpose of calculating additional pay to the judge and establishing the duration of his annual leave, the work record of the judge shall also include the record of his work as a justice of the Constitutional Court of the Republic of Lithuania, a prosecutor, a deputy prosecutor, an investigator of the Prosecutor’s Office and a state arbiter, the record of his work in the state service, and the record of pedagogical work of the persons possessing the academic degrees of doctor or habilitated doctor of social sciences in the field of law”. Thus, having compared the legal regulation established in Paragraph 2 (wording of 2 July 2002) of Article 97 of the Law on Courts with the one established in Paragraph 2 (wording of 24 January 2002) of Article 97 of the Law on Courts, it is clear that the relations connected with calculation of the work record of the judge for the purpose of establishing the amount of the pension of the judge ceased to be regulated. The said relations have been regulated by the Republic of Lithuania Law on the State Pensions of Judges, which was adopted on 2 July 2002.
  2. On 5 July 2002, the Seimas adopted the Republic of Lithuania Law on Amending Articles 2, 3 and 6 of the Law on the Pay for Work of State Politicians, Judges and State Officials and the Annex thereof, by means of which it amended inter alia Paragraph 1 of Article 3 of the Law on the Pay for Work of State Politicians, Judges and State Officials and laid down that work remuneration of state politicians and judges is comprised of the positional salary and additional pay for the years served for the State of Lithuania. This law came into force on 1 August 2002. Thus, after the entry into force of the said law on amending the law, the Law on the Pay for Work of State Politicians, Judges and State Officials (wording of 5 July 2002) no longer provided for the legal regulation under which one-time extra pay could be paid to judges.
  3. The Law on the Pay for Work of State Politicians, Judges and State Officials has been amended more than once, however, no changes of significance to the constitutional justice case at issue have been made.
  4. On 2 April 2004, the Council of Courts adopted Resolution No. 207 “On Assenting to the Methodology for Calculating Work Remuneration of Judges Prepared by the Work Group”, by means of which it assented to the methodology for calculating work remuneration of judges prepared by the work group. This methodology was intended for the purpose of calculating the remuneration of judges after the entry into force of the Constitutional Court ruling of 12 July 2001, when the Law on the Pay for Work of State Politicians, Judges and State Officials was in force not to its full extent, but inasmuch as it was not in conflict with the Constitution.
  5. On 3 July 2008, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 33, 34, 36, 38, 39, 42, 43, 47, 51, 551, 57, 61, 63, 64, 691, 81, the Title of Chapter IX, Articles 83, 84, 85, 86, 90, 98, 101, 103, the Title of the Second Section of Chapter XII, and Articles 106, 107, 108, 119, 120, 122, 124, 127, 128, 129 of the Law on Courts, Recognising Articles 89, 109, 110, 111, 112 and 125 Thereof as No Longer Valid, and Supplementing the Law with Articles 531 and 532 and Chapter IX Thereof with the Third Section, by Article 47 whereof it recognised inter alia the Law on the Entry into Force and Implementation of the Law on Amending the Law on Courts, which had been adopted on 14 March 2002, as no longer valid.

Article 46 “The Entry into Force and Implementation of the Law” of the aforesaid law adopted on 3 July 2008 inter alia prescribed that “for the judges to whom the annual leave of a longer duration and/or, while taking account of their work record, the additional pay supplementing their positional salary of a greater amount, and/or other social guarantees were established prior to the entry into force of this law, the said guarantees shall not be reduced”.

This law has been subject to amendments; however, the aforesaid provision has not been changed.

  1. On 6 November 2008, the Seimas adopted the Republic of Lithuania Law on Amending Articles 96, 97 and 101 of the Law on Courts. It needs to be noted that after the said amendment, for the purpose of establishing the duration of annual leave and calculating the additional pay for the years served for the State of Lithuania, the work record of the judge, which used to be established in Article 97 of the Law on Courts prior to the amendment, has been regulated by the Republic of Lithuania Law on the Remuneration of Judges adopted by the Seimas on the same day, i.e. on 6 November 2008.
  2. On 6 November 2008, the Seimas adopted the Law on the Remuneration of Judges, which came into force on 15 November 2008. Article 1 of this law has entrenched that this law establishes the amounts of the remuneration of judges and the procedure for calculation thereof.
  3. Article 4 “The Remuneration of Judges” of the Law on the Remuneration of Judges prescribes:

“1. The remuneration of justices of the Constitutional Court of the Republic of Lithuania shall be calculated by multiplying the corresponding remuneration coefficient, which is set in the Annex of this Law, by the base value.

  1. The remuneration of Presidents and their deputies, chairmen of divisions and judges of courts of general jurisdiction and specialised courts (hereinafter referred to as judges of courts of general jurisdiction and specialised courts) shall consist of the following:

1) the positional salary;

2) the additional pay for the years served for the State of Lithuania.

  1. The positional salary of judges of courts of general jurisdiction and specialised courts shall be calculated by multiplying the corresponding coefficient of the positional salary, which is set in the Annex of this Law, by the base value.
  2. The remuneration of justices of the Constitutional Court of the Republic of Lithuania and the positional salary of judges of courts of general jurisdiction and specialised courts shall be rounded by following the common rules for rounding numbers so that the last figure would be either 0 or 5.
  3. The data on the remuneration of judges shall be public. These data shall be submitted in accordance with the procedure established in the Republic of Lithuania Law on the Right to Receive Information from State and Municipal Institutions and Establishments.”
  4. Thus, the law has entrenched that the remuneration of Presidents and their deputies, chairmen of divisions and judges of courts of general jurisdiction and specialised courts is comprised of the two constituent parts—the positional salary and the additional pay for the years served for the State of Lithuania.

In this context it needs to be noted that the Law on the Remuneration of Judges, differently from the Law on the Pay for Work of State Politicians, Judges and State Officers, does not establish any constituent parts of the remuneration of justices of the Constitutional Court. The Law on the Remuneration of Judges has entrenched that the remuneration of justices of the Constitutional Court is calculated by multiplying the corresponding remuneration coefficient by the base value.

  1. It needs to be noted that the Law on the Remuneration of Judges, as well as the Law on the Pay for Work of State Politicians, Judges and State Officials adopted by the Seimas on 29 August 2000, entrenched the institute of the additional pay for the years served for the State of Lithuania.
  2. Article 5 of the Law on the Remuneration of Judges regulates payment of the additional pay supplementing the remuneration of judges for the years served for the State of Lithuania.

“1. Judges of courts of general jurisdiction and specialised courts shall be paid the additional pay for the years served for the State of Lithuania from 11 March 1990 in the offices specified in Paragraphs 1–4 and Items 1–4 of Paragraph 5 of Article 4 of the Law on the State Service (with the exception of the members of the municipal council who have not served as mayors and deputy mayors). The time served for the state shall include the periods specified in Paragraph 1 of Article 42 of the aforesaid law, which are calculated according to the Rules for Calculating the Length of Service for the State of Lithuania as approved by the Government of the Republic of Lithuania.

  1. The additional pay for the years served for the state shall be comprised of 3 percent of the positional salary of the judge for every three years; however, the size of the additional pay may not exceed 30 percent of the positional salary.”
  2. Article 4 “Application of the Law” (wording of 22 June 2010) of the Republic of Lithuania Law on the State Service (wording of 8 July 1999) prescribes:

“1. This Law shall apply, without reservations, to state servants, except for statutory state servants.

  1. Statutory state servants shall be covered, without reservations, by Article 15, Paragraphs 4 and 6 of Article 16, Article 161, Article 17, Article 181, Article 19, Article 28, Paragraphs 5 and 6 of Article 29, Article 31, Article 311, Article 32, Article 33, Article 381, Paragraph 1 of Article 39, Item 9 of Paragraph 5 of Article 43, and Chapter VI of this Law. Other provisions of this Law shall apply to statutory state servants inasmuch as their status is not regulated by the statutes or the Law on the Diplomatic Service.
  2. Paragraph 3 of Article 33 of this Law shall apply to the heads of state institutions and establishments appointed by the Seimas or the President of the Republic, to other state officials appointed by the Seimas or the President of the Republic, as well as heads of governmental establishments and other officials of these establishments employed by the Government. Article 36 of this Law shall also apply to the said state officials, except for those whose annual leave is regulated by special laws. Provisions of Chapter VI of this Law shall apply to the Director General of the State Security Department and his deputies, the Director of the Special Investigation Service and his deputies, as well as to the Police Commissioner General. This Law shall apply to the Chancellor of the Office of the President of the Republic without reservations, and to the Secretary General of the Seimas—under the rules provided for in the Statute of the Seimas.
  3. Only Paragraph 3 of Article 33 of this Law shall apply to the chairmen of state (standing) commissions and councils appointed by the Seimas or the President of the Republic, their deputies and members of such commissions or councils, as well as to the chairmen and members of the commissions, councils, boards of funds established under special laws. Article 36 of this Law shall also apply to the said state officials, except for those who regularly attend only the meetings held by the commissions, councils and boards of funds specified in this paragraph.
  4. This Law shall not apply to:

1) state politicians;

2) justices of the Constitutional Court of the Republic of Lithuania, the Supreme Court of Lithuania, judges of the Supreme Administrative Court of Lithuania and other courts, and prosecutors;

3) the Chairman of the Board of the Bank of Lithuania, his deputies, members of the Board and other employees of the Bank of Lithuania;

4) servicemen in the professional military service;

5) employees of state and municipal enterprises;

6) employees of public establishments;

7) employees working under employment contracts and receiving work remuneration from the state and municipal budgets and state monetary funds.”

  1. Thus, while construing the legal regulation entrenched in Paragraph 1 of Article 5 of the Law on the Remuneration of Judges alongside the legal regulation entrenched in Article 4 (wording of 22 June 2010) of the Law on the State Service, it needs to be noted that judges of courts of general jurisdiction and specialised courts are paid the additional pay for the years served for the State of Lithuania from 11 March 1990 in the offices of the state servant, the statutory state servant, the head of a state institution or establishment appointed by the Seimas or the President of the Republic, other state official appointed by the Seimas or the President of the Republic, the head of a Government establishment, other official of such an establishment employed by the Government, the Director General of the State Security Department or his deputy, the Director of the Special Investigation Service or his deputy, the Police Commissioner General, the Chancellor of the Office of the President of the Republic, the Secretary General of the Seimas, the Chairman of a state (standing) commission or council appointed by the Seimas or the President of the Republic, his deputy or a member of such a commission or council, as well as the Chairman or a member of a commission, council or board of a fund established under special laws, the state politician, also a justice of the Constitutional Court, a judge of the Supreme Court of Lithuania, the Supreme Administrative Court of Lithuania and other courts, or the prosecutor, the Chairman of the Board of the Bank of Lithuania, his deputy, a member of the Board or other employee of the Bank of Lithuania, or the serviceman in the professional military service.

In its rulings of 13 December 2004 and 20 March 2007, the Constitutional Court held that it is the persons employed at the state or municipal institutions who adopt decisions while exercising public administration and/or providing public services (or participate in drafting and executing such decisions, coordinating and/or controlling the execution thereof, etc.) that are to be considered state servants.

Summing it up it needs to be noted that the additional pay for the years served for the State of Lithuania is paid to judges of courts of general jurisdiction and specialised courts for the years served for the State of Lithuania from 11 March 1990 in respective offices at state or municipal institutions. The said additional pay is calculated and paid not only to those judges who have worked for a certain period of time as judges in courts, but also to those who have held the offices of the state servant or official in other respective state or municipal institutions.

It also needs to be noted that the Law on the Remuneration of Judges, differently from what it establishes for judges of courts of general jurisdiction and specialised courts, does not provide for the additional pay to justices of the Constitutional Court for the years served for the State of Lithuania.

  1. In this context it also needs to be mentioned that, on 6 November 2008, the Seimas adopted the Republic of Lithuania Law on Amending Article 16 of the Law on the Constitutional Court, by means of which it inter alia revoked the previously valid provisions that the justice of the Constitutional Court is paid the remuneration of the amount higher by 30 percent than the maximum remuneration of the justice of the Supreme Court and that the President of the Constitutional Court or a justice temporarily holding the office of the President is paid the remuneration of the amount higher by 10 percent than the remuneration of the justice of the Constitutional Court, and also established that the remuneration of the President and justices of the Constitutional Court is set by the Law on the Remuneration of Judges.

In this context it needs to be noted that the compliance of Article 16 (wording of 6 November 2008) of the Law on the Constitutional Court with the Constitution is not a matter of investigation in the constitutional justice case at issue.

  1. Article 6 of the Law on the Remuneration of Judges covers the regulation of payment of one-time extra pay:

“1. At the end of the year, for overtime work and work during days off and on holidays while performing the functions of the judge specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws, judges of courts of general jurisdiction and specialised courts shall be paid one-time extra pay in the amount not higher than their positional salary. The said extra pay shall be paid by not exceeding the allocations for work remuneration set to the court in the Republic of Lithuania Law on Approving Financial Indicators of the State Budget and Municipal Budgets of the corresponding year. In cases where the said funds are insufficient, also where a judge has worked in an institution for less than a full year, the amount of extra pay shall be recalculated proportionately to the funds available for work remuneration and the period of time worked in that year.

  1. The conditions and procedure for establishment of the amounts of the extra pay specified in Paragraph 1 of this Law and for payment thereof shall be set by the Council of Judges.”
  2. It needs to be noted that Paragraph 1 of Article 6 of the Law on the Remuneration of Judges establishes limitation on the remuneration paid to judges of courts of general jurisdiction and specialised courts for overtime work and work during days off and on holidays while performing the functions of the judge specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws: for the aforesaid work, at the end of the year, judges are paid one-time extra pay in the amount not higher than their positional salary, which may not exceed the allocations set for work remuneration, and in cases where the said funds are insufficient or where a judge has worked in an institution for less than a full year, the amount of extra pay is recalculated proportionately to the funds available for work remuneration and the period of time worked in that year.

It also needs to be noted that the Law on the Remuneration of Judges, differently from what it establishes for judges of courts of general jurisdiction and specialised courts, does not provide for the extra pay paid to justices of the Constitutional Court. It needs to be mentioned that there may occur such situations where, while performing certain functions of justices of the Constitutional Court and while seeking not to be in breach of the terms set in the Law on the Constitutional Court, justices of the Constitutional Court may need to work during days off or on holidays. For instance, under Article 77 of the Law on the Constitutional Court, the inquiry concerning the violation of the laws on elections must be examined within 72 hours of its filing with the Constitutional Court; the said terms also include non-working days.

  1. In this context it needs to be noted that Article 98 of the Law on Courts (wording of 24 January 2002) prescribed that for the performance of the judicial duties specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws after working hours, on days off and holidays judges may be compensated by granting to them additional 14 calendar days of a paid annual leave. This provision lost its validity as from 1 September 2008.
  2. It has been mentioned that by means of the 2 April 2004 Resolution of the Council of Courts No. 207 “On Assenting to the Methodology for Calculating Work Remuneration of Judges Prepared by the Work Group”, the Council of Courts assented to the methodology for calculating work remuneration of judges prepared by the work group, which was intended for the purpose of calculating the remuneration of judges after the entry into force of the Constitutional Court ruling of 12 July 2001, when the Law on the Pay for Work of State Politicians, Judges and State Officials was in force not to its full extent, but inasmuch as it was not in conflict with the Constitution. It needs to be noted that, under the said methodology, the remuneration of judges was calculated until the very entry into force of the Law on the Remuneration of Judges.

Having compared the amounts of the remuneration of judges established in the Law on the Remuneration of Judges with the ones calculated according to the methodology for calculating work remuneration of judges, it needs to be noted that after the adoption of the Law on the Remuneration of Judges the main constituent part—the positional salary—of the remuneration of judges has increased.

It also needs to be noted that, under the methodology for calculating work remuneration of judges, one of the constituent parts of the remuneration of judges was the additional pay supplementing the service remuneration of judges for the time served, which could amount to 75 percent of the service remuneration of the judge, whereas the Law on the Remuneration of Judges has established, as a part of the remuneration of the judge, the additional pay for the years served for the State of Lithuania, which is comprised of 3 percent of the positional salary of the judge for every three years, however, the size of the additional pay may not exceed 30 percent of the positional salary. Thus, it is clear that after the adoption of the Law on the Remuneration of Judges the relative value of additional pay—a constituent part of the remuneration of the judge—has decreased.

From the calculations of the amounts of the remuneration of judges according to the methodology for calculating work remuneration of judges and according to the Law on the Remuneration of Judges, it is clear that, after the adoption of the Law on the Remuneration of Judges, the remuneration of judges—the sum of the positional salary and additional pay—has increased.

  1. The aforementioned articles of the Law on the Remuneration of Judges have not been amended and/or supplemented.

IV

On the compliance of Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

  1. As mentioned, the Constitutional Court will investigate whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Paragraph 2 of Article 4 of the Law on the Remuneration of Judges prescribes:

“The remuneration of Presidents, their deputies, chairmen of divisions and judges of courts of general jurisdiction and specialised courts <...> shall consist of:

1) the positional salary;

2) the additional pay for the years served for the State of Lithuania.”

Thus, Paragraph 2 of Article 4 of the Law on the Remuneration of Judges prescribes that the remuneration of judges is comprised of two constituent parts. One of such constituent parts—the additional pay for the years served for the State of Lithuania—is entrenched inter alia in Item 2 of Paragraph 2 of Article 4 of the Law on the Remuneration of Judges.

  1. Article 5 of the Law on the Remuneration of Judges prescribes:

“1. Judges of courts of general jurisdiction and specialised courts shall be paid the additional pay for the years served for the State of Lithuania from 11 March 1990 in the offices specified in Paragraphs 1–4 and Items 1–4 of Paragraph 5 of Article 4 of the Law on the State Service (with the exception of the members of the municipal council who have not served as mayors and deputy mayors). The time served for the state shall include the periods specified in Paragraph 1 of Article 42 of the aforesaid law, which are calculated according to the Rules for Calculating the Length of Service for the State of Lithuania as approved by the Government of the Republic of Lithuania.

  1. The additional pay for the years served for the state shall be comprised of 3 percent of the positional salary of the judge for every three years; however, the size of the additional pay may not exceed 30 percent of the positional salary.”
  2. The doubts of the petitioners regarding the compliance of Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, with Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law are substantiated by the fact that, according to them, the disputed legal regulation has created preconditions for decrease in additional pay supplementing the positional salary of the judges who have the record of work as an advocate.

4.1. It has been mentioned that, by means of the 2 April 2004 Resolution of the Council of Courts No. 207 “On Assenting to the Methodology for Calculating Work Remuneration of Judges Prepared by the Work Group”, the Council of Courts assented to the methodology for calculating work remuneration of judges prepared by the work group, which was intended for the purpose of calculating the remuneration of judges after the entry into force of the Constitutional Court ruling of 12 July 2001, when the Law on the Pay for Work of State Politicians, Judges and State Officials was in force not to its full extent, but inasmuch as it was not in conflict with the Constitution; under the said methodology, the remuneration of judges was calculated until the very entry into force of the Law on the Remuneration of Judges on 15 November 2008.

It has been mentioned that having compared the amounts of the remuneration of judges established in the Law on the Remuneration of Judges with the ones calculated according to the methodology for calculating work remuneration of judges, it is clear that after the adoption of the Law on the Remuneration of Judges the main constituent part of the remuneration of judges—the positional salary—has increased.

It has been also mentioned that, under the methodology for calculating work remuneration of judges, one of the constituent parts of the remuneration of judges was the additional pay supplementing the service remuneration of judges for the time served, which could amount to 75 percent of the service remuneration of the judge, whereas the Law on the Remuneration of Judges has established, the additional pay for the years served for the State of Lithuania (as a part of the remuneration of the judge), which is comprised of 3 percent of the positional salary of the judge for every three years; however, the size of the additional pay may not exceed 30 percent of the positional salary. Thus, it is clear that after the adoption of the Law on the Remuneration of Judges the relative value of additional pay—a constituent part of the remuneration of the judge—has decreased.

It has been mentioned that, from the calculations of the amounts of the remuneration of judges according to the methodology for calculating work remuneration of judges and according to the Law on the Remuneration of Judges, it is clear that, after the adoption of the Law on the Remuneration of Judges, the remuneration of judges—the sum of the positional salary and additional pay—has increased.

4.2. While assessing the disputed legal regulation in the aspect indicated by the petitioner, one needs to take into account the intentions of the legislator recorded in the travaux préparatoires, from which it is clear that the Law on the Remuneration of Judges sought to set new coefficients of the remuneration of the President and justices of the Constitutional Court which would be calculated according to the remuneration actually paid to judges at that time. By means of the Law on the Remuneration of Judges one also sought to establish new coefficients of positional salaries of judges of courts of general jurisdiction and specialised courts (the Supreme Court of Lithuania, the Supreme Administrative Court of Lithuania, the Court of Appeal of Lithuania, regional courts, and regional administrative courts) which would be calculated according to the maximum amounts of the remuneration actually paid to judges at that time and by assessing the fact that the additional pay is established for these judges for the years served for the State of Lithuania.

4.3. In the constitutional justice case at issue the specialists emphasised that upon the adoption of the Law on the Remuneration of Judges a part of the remuneration of judges—additional pay—has decreased, however, the main part of the remuneration of judges—the positional salary—has virtually increased. Thus, according to the specialists, after the entry into force of the Law on the Remuneration of Judges, the remuneration of judges has not decreased but, on the contrary, after one raised the positional salary, which constitutes the main part of the remuneration of judges, it has increased.

4.4. In addition, it also needs to be noted that the petitioners, while disputing the compliance of Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges with the Constitution, maintain that, upon the adoption of the Law on the Remuneration of Judges, additional pay supplementing the positional salary of the judges who have the record of work as an advocate has decreased, however, they do not indicate that upon the adoption of the said law the remuneration of judges would have decreased.

4.5. Thus, there are no grounds to maintain that, upon the adoption of the Law on the Remuneration of Judges, where the period of work as an advocate was not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, the remuneration of judges has decreased.

  1. It has been mentioned that the judge, who is obligated to settle conflicts arising in society as well as those between a person and the state, must be not only highly professionally qualified and of impeccable reputation, but also materially independent and feel secure as to his future; the constitutional imperative of the constitutional protection of remuneration and other social (material) guarantees of judges arises from the principle of the independence of the judge and courts established in the Constitution (inter alia Article 109 thereof). By this principle one attempts to protect the judges administering justice from any influence of the legislative and executive power as well as from that of other state establishments and officials, political and public organisations, commercial economic structures, and other legal and natural persons; the state has a duty to establish such salaries to judges which would be in conformity with the status of the judiciary and judges, with the functions exercised by them and their responsibility.

5.1. It has also been mentioned that the Constitution prohibits reduction in remuneration and other social (material) guarantees of judges; any attempts to reduce the remuneration of the judge or his other social (material) guarantees, or limitation upon financing of courts are treated as encroachment upon the independence of judges and courts; as every person, a judge has the right to defend his rights, legitimate interests and legitimate expectations.

5.2. It has been mentioned that the Constitutional Court has noted that the notion “remuneration of the judge” includes all the payments paid to the judge from the State Budget. It has been held in this Constitutional Court ruling that the legislator, while regulating the relations connected with the establishment of the remuneration of judges, may establish that remuneration—a social (material) guarantee of a judge—is comprised of not one, but several constituent parts, inter alia the positional salary, additional pay and extra pay, also that, under the Constitution, reduction in some constituent part of the remuneration of the judge by raising other constituent part of the remuneration of the judge, where the remuneration of the judge itself does not decrease, does not mean the reduction in the remuneration of the judge as a social (material) guarantee of the judge.

  1. It has been mentioned that the petitioner doubts whether Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges are not in conflict with inter alia Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, since, according to the petitioner, by not including the period of work as an advocate into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, judges who have worked as advocates are discriminated.

6.1. It needs to be noted that the additional pay for the years served for the State of Lithuania is related to the institute of the state service and is dependent on the peculiarities thereof. As mentioned, the said additional pay is calculated and paid not only to those judges who have worked for a certain period of time as judges in courts, but also to those who have held the offices of the state servant or official in other respective state or municipal institutions.

In its ruling of 13 December 2004, the Constitutional Court held that the notion “state institutions” is of general type and that it comprises various state institutions through which the state exercises its functions. The state institutions comprise a system. This system of state institutions is consolidated in legal acts of diverse legal power. Some state institutions are expressis verbis specified in the Constitution. Other state institutions, under the Constitution, are to be specified by the law.

Various state institutions are expressis verbis specified in the Constitution: the Seimas; the President of the Republic; the Government; the Constitutional Court; the Supreme Court, the Court of Appeal, regional and local courts; the Seimas Controllers; the State Control; the Bank of Lithuania; the State Defence Council; the Chief of the Army; the Office of the Prosecutor General; and the Central Electoral Commission. Some state institutions are consolidated in the Constitution without specifying their exact names: Ministries; the security service; a special institution of judges provided for by the law which advises the President of the Republic on the appointment of judges, as well as their promotion, transference, or dismissal from office; territorial prosecutor’s offices; representatives of the Government who supervise whether municipalities follow the Constitution and the laws, and whether they execute the Government decisions. The Constitution also provides for the institutions that may be established by the laws adopted by the Seimas: institutions of control; governmental institutions; specialised courts for hearing cases of administrative, labour, family and other categories (Constitutional Court ruling of 13 December 2004).

6.2. In the context of the constitutional justice case at issue it needs to be noted that the activities of the advocate constitute certain independent professional activities of a person that are related with rendering of corresponding legal services and which may not be equated with holding the office of the state servant or official in state or municipal institutions, inter alia with the state service.

It also needs to be noted that for the rendered legal services advocates are paid by customers, whereas persons who work in state or municipal institutions are remunerated for their service from the state (municipal) budget.

Therefore, advocates are distinguished from the aforesaid persons, whose work is included into one’s work record for the purpose of calculating a constituent part of the remuneration of the judge—the additional pay for the years served for the State of Lithuania—also in the aspect that advocates may not be treated as persons working in state or municipal institutions. Thus, between advocates and persons working in state or municipal institutions, there are such differences that objectively justify the legal regulation establishing that the period of work as an advocate, differently from the work record of persons who have worked in state or municipal institutions, is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania.

6.3. It has been mentioned that, as the Constitutional Court has held, the constitutional principle of equality of rights of persons in itself does not deny an opportunity to establish diverse and differentiated legal regulation by means of legislation with respect to certain persons who belong to different categories, if there exist differences between these persons of such a character that objectively justify such differentiated regulation.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Law on the Remuneration of Judges, insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, are not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

V

On the compliance of Paragraph 1 of Article 6 of the Law on the Remuneration of Judges with Paragraph 1 of Article 29 of the Constitution, the provision “Each human being <…> shall have the right <…> to receive fair pay for work<...>” of Paragraph 1 of Article 48 and Paragraph 2 of Article 109 thereof, and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the petitioners have doubts as to whether Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is not in conflict with Paragraph 1 of Article 29 of the Constitution, the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 and Paragraph 2 of Article 109 thereof, and the constitutional principle of a state under the rule of law.
  2. It has been mentioned that Article 6 “One-time Extra Pay” of the Law on the Remuneration of Judges prescribes:

“1. At the end of the year, for overtime work and work during days off and on holidays while performing the functions of the judge specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws, judges of courts of general jurisdiction and specialised courts shall be paid one-time extra pay in the amount not higher than their positional salary. The said extra pay shall be paid by not exceeding the allocations for work remuneration set to the court in the Republic of Lithuania Law on Approving Financial Indicators of the State Budget and Municipal Budgets of the corresponding year. In cases where the said funds are insufficient, also where a judge has worked in an institution for less than a full year, the amount of extra pay shall be recalculated proportionately to the funds available for work remuneration and the period of time worked in that year.

  1. The conditions and procedure for establishment of the amounts of the extra pay specified in Paragraph 1 of this Law and for payment thereof shall be set by the Council of Judges.”
  2. It has been mentioned that Paragraph 1 of Article 6 of the Law on the Remuneration of Judges establishes limitation on the remuneration paid to judges for overtime work and work during days off and on holidays while performing the functions of the judge specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws: for the aforesaid work, at the end of the year, judges are paid one-time extra pay in the amount not higher than their positional salary, which may not exceed the allocations set for work remuneration, and in cases where the said funds are insufficient or where a judge has worked in an institution for less than a full year, the amount of extra pay is recalculated proportionately to the funds available for work remuneration and the period of time worked in that year.
  3. It needs to be noted that one may not treat the provisions of Paragraph 1 of Article 6 of the Law on the Remuneration of Judges as the legal norms intended for the regulation of the procedure for the pay for work of the judge while performing the functions that ought to be fulfilled on working days during regular working time of the judge.

Alongside, however, it needs to be noted that from the Constitution and laws there also arise such functions of the judge while performing which the judge is obliged to work overtime, during days off and on holidays: for instance, under Paragraph 3 of Article 20 of the Constitution, a person detained in flagrante delicto must, within 48 hours, be brought before a court for the purpose of deciding, in the presence of the detainee, on the validity of the detention; while questioning a person arrested under the procedure established in Paragraph 3 of Article 123 of the Code of Criminal Procedure, as well as while imposing an arrest on a person under the procedure established in Paragraph 4 of Article 124 of the Code of Criminal Procedure, such a person must, within 48 hours, be brought before a judge of pre-trial investigation for the purpose of questioning as to the validity of the detention and deciding thereon; under Article 148 of the Code of Civil Procedure, the court must decide on the petition regarding the application of temporary protective measures within three days from the receipt thereof. From the Republic of Lithuania Laws on Elections of the President of the Republic, Elections to the Seimas, Elections to the European Parliament, Elections to Municipal Councils, and on Referendum, a duty arises for courts to consider certain complaints relating to the legal relations of elections and referendums within 48 hours.

  1. It needs to be noted that, under the disputed legal regulation, there may occur such situations where the one-time extra pay payable, under Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, to judges who, while performing the aforementioned functions of the judge have worked overtime, during days off and on holidays, is not proportionate to the time worked and where the said pay is limited; thus, there may occur such situations where, for the aforesaid work of the judge, judges are not remunerated or they are remunerated not in a fair manner.
  2. While assessing Paragraph 1 of Article 6 of the Law on the Remuneration of Judges it also needs to be noted that the legal regulation established therein precludes the possibility of individualising one-time extra pay of judges according to their overtime work, work during days off and on holidays.
  3. It has been mentioned that, under the Constitution, inter alia Paragraph 1 of Article 48 thereof, there may not be any such situation where the judge who discharges the functions specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws, which must be performed after working hours, during days off and on holidays, would be not paid or would not be paid for the said work in a fair manner.

Consequently, under the Constitution, inter alia Paragraph 1 of Article 48 thereof, and the constitutional principle of a state under the rule of law, there must be established such legal regulation, under which judges who perform the functions of the judge specified in the Code of Criminal Procedure, the Code of Civil Procedure and other laws would be remunerated for overtime work and work during days off and on holidays in a fair manner.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is in conflict with the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Having held in this ruling that Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is in conflict with the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether Paragraph 1 of Article 6 of the Law on the Remuneration of Judges, insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution.

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 has passed the following

ruling:

  1. To recognise that Item 2 of Paragraph 2 of Article 4 and Paragraph 1 of Article 5 of the Republic of Lithuania Law on the Remuneration of Judges (Official Gazette Valstybės žinios, 2008, No. 131-5022), insofar as the period of work as an advocate is not included into one’s work record for the purpose of calculating the additional pay for the years served for the State of Lithuania, is not in conflict with the Constitution of the Republic of Lithuania.
  2. To recognise that Paragraph 1 of Article 6 of the Republic of Lithuania Law on the Remuneration of Judges (Official Gazette Valstybės žinios, 2008, No. 131-5022), insofar as it limits the right of judges to receive a fair remuneration for overtime work and work during days off and on holidays, is in conflict with the provision “Each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania as well as with the constitutional principle of a state under the rule of law.

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

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

Justices of the Constitutional Court:                         Armanas Abramavičius

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Kęstutis Lapinskas

                                                                                             Zenonas Namavičius

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis