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On dismissing judges upon the expiry of the term of powers

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

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE PROVISIONS OF SUBITEM 15.3.1.1 AND ITEM 22 OF SECTION II OF THE REASONING PART OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA “ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 24 JANUARY 2002), PARAGRAPH 3 (WORDING OF 21 JANUARY 2003), PARAGRAPHS 4, 5 AND 6 (WORDING OF 24 JANUARY 2002) OF ARTICLE 56, PARAGRAPH 3 (WORDING OF 28 JANUARY 2003) OF ARTICLE 57, PARAGRAPH 4 (WORDING OF 24 JANUARY 2002) OF ARTICLE 63, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 70, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 71, PARAGRAPHS 2 AND 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 72, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 73, PARAGRAPH 1 (WORDING OF 24 JANUARY 2002) OF ARTICLE 74, PARAGRAPH 1 (WORDING OF 24 JANUARY 2002) OF ARTICLE 75, PARAGRAPH 2 (WORDING OF 21 JANUARY 2003) OF ARTICLE 76, PARAGRAPH 3 (WORDING OF 24 JANUARY 2002) OF ARTICLE 77, PARAGRAPH 2 (WORDING OF 21 JANUARY 2003) OF ARTICLE 78, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 79, PARAGRAPHS 3 AND 7 (WORDING OF 24 JANUARY 2002) OF ARTICLE 81, PARAGRAPHS 3 AND 7 (WORDING OF 24 JANUARY 2002) OF ARTICLE 90, PARAGRAPHS 2 AND 5 (WORDING OF 24 JANUARY 2002) OF ARTICLE 119, ITEMS 3 AND 4 (WORDING OF 24 JANUARY 2002) OF ARTICLE 120, PARAGRAPH 2 (WORDING OF 24 JANUARY 2002) OF ARTICLE 128 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS, OF ITEM 13 (WORDING OF 4 JULY 1996) OF PARAGRAPH 3 OF ARTICLE 11, PARAGRAPHS 1 AND 3 (WORDING OF 18 APRIL 1995) AND PARAGRAPH 4 (WORDING OF 4 JULY 1996) OF ARTICLE 17, PARAGRAPH 3 (WORDING OF 18 APRIL 1995) OF ARTICLE 18 OF THE REPUBLIC OF LITHUANIA’S LAW ‘THE STATUTE OF THE SUPREME COURT OF LITHUANIA’ AND OF ARTICLE 1 OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 2048) ‘ON RELEASING OF A JUDGE OF THE REGIONAL COURT FROM OFFICE’ OF 10 FEBRUARY 2003” OF 9 MAY 2006

15 May 2009
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

The court reporter—Daiva Pitrėnaitė

Aušra Rauličkytė and Milda Vainiutė, advisers to the President of the Republic of Lithuania, acting as the representatives of the President of the Republic of Lithuania, the petitioner who submitted the petition requesting the construction of the provisions of the 9 May 2006 ruling of Constitutional Court of the Republic of Lithuania

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 11 May 2009, in its public hearing, considered the petition of the President of the Republic set forth in his Decree (No. 1K-1778) “On the Petition to the Constitutional Court Requesting the Construction of the Provisions of the Ruling the Constitutional Court of the Republic of Lithuania ‘On the compliance of Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5 and 6 (wording of 24 January 2002) of Article 56, Paragraph 3 (wording of 28 January 2003) of Article 57, Paragraph 4 (wording of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 72, Paragraph 2 (wording of 24 January 2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph 1 (wording of 24 January 2002) of Article 75, Paragraph 2 (wording of 21 January 2003) of Article 76, Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph 2 (wording of 21 January 2003) of Article 78, Paragraph 2 (wording of 24 January 2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 90, Paragraphs 2 and 5 (wording of 24 January 2002) of Article 119, Items 3 and 4 (wording of 24 January 2002) of Article 120, Paragraph 2 (wording of 24 January 2002) of Article 128 of the Republic of Lithuania’s Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3 (wording of 18 April 1995) of Article 18 of the Republic of Lithuania’s Law “The Statute of the Supreme Court of Lithuania” and of Article 1 of the Decree of the President of the Republic of Lithuania (No. 2048) “On Releasing a Judge of the Regional Court From Office” of 10 February 2003’ of 9 May 2006” requesting the construction of whether the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the 9 May 2006 ruling of the Constitutional Court of the Republic of Lithuania should be understood as meaning that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the factual circumstance is recognised that the term, i.e. the term of their powers, of the appointment of the aforesaid officials has expired; and whether the same provisions should be understood as meaning that, if the factual circumstance that the term of appointment of the aforesaid officials to this office has expired is not disputed, whether there are any circumstances which would be constitutionally justifiable, under which the voting of a member of the Seimas against the release of the aforesaid officials from office upon the expiration of their powers would be compatible with the duty of a member of the Seimas, which stems from his oath to respect and execute the Constitution and laws, to conscientiously discharge the duties of the representative of the Nation as obligated by the Constitution.

The Constitutional Court

has established:

I

1. On 9 May 2006, in constitutional justice case No. 13/04-21/04-43/04, the Constitutional Court adopted the Ruling “On the Compliance of Paragraph 2 (wording of 24 January 2002), Paragraph 3 (wording of 21 January 2003), Paragraphs 4, 5 and 6 (wording of 24 January 2002) of Article 56, Paragraph 3 (wording of 28 January 2003) of Article 57, Paragraph 4 (wording of 24 January 2002) of Article 63, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 70, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 71, Paragraphs 2 and 3 (wording of 24 January 2002) of Article 72, Paragraph 2 (wording of 24 January 2002) of Article 73, Paragraph 1 (wording of 24 January 2002) of Article 74, Paragraph 1 (wording of 24 January 2002) of Article 75, Paragraph 2 (wording of 21 January 2003) of Article 76, Paragraph 3 (wording of 24 January 2002) of Article 77, Paragraph 2 (wording of 21 January 2003) of Article 78, Paragraph 2 (wording of 24 January 2002) of Article 79, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 81, Paragraphs 3 and 7 (wording of 24 January 2002) of Article 90, Paragraphs 2 and 5 (wording of 24 January 2002) of Article 119, Items 3 and 4 (wording of 24 January 2002) of Article 120, Paragraph 2 (wording of 24 January 2002) of Article 128 of the Republic of Lithuania’s Law on Courts, of Item 13 (wording of 4 July 1996) of Paragraph 3 of Article 11, Paragraphs 1 and 3 (wording of 18 April 1995) and Paragraph 4 (wording of 4 July 1996) of Article 17, Paragraph 3 (wording of 18 April 1995) of Article 18 of the Republic of Lithuania’s Law ‘The Statute of the Supreme Court of Lithuania’ and of Article 1 of the Decree of the President of the Republic of Lithuania (No. 2048) ‘On Releasing a Judge of the Regional Court From Office’ of 10 February 2003” (Official Gazette Valstybės žinios, 2006, No. 51-1894; hereinafter referred to as the Constitutional Court’s ruling of 9 May 2006).

2. In the Constitutional Court’s ruling of 9 May 2006, it was recognised, inter alia, that:

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

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

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

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

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

3. The President of the Republic, the petitioner, requests that the Constitutional Court construe whether the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 should be understood as meaning that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the factual circumstance is recognised that the term, i.e. the term of their powers, of the appointment of the aforesaid officials has expired; and whether the same provisions should be understood as meaning that, if the factual circumstance that the term of appointment of the aforesaid officials to this office has expired is not disputed, whether there are any circumstances which would be constitutionally justifiable, under which the voting of a member of the Seimas against the release of the aforesaid officials from office upon the expiration of their powers would be compatible with the duty of a member of the Seimas, which stems from his oath to respect and execute the Constitution and laws, to conscientiously discharge the duties of the representative of the Nation as obligated by the Constitution.

This petition was received at the Constitutional Court on 9 April 2009.

II

At the Constitutional Court’s hearing, the representatives of the President of the Republic of Lithuania, the petitioner who submitted the petition requesting the construction of whether some provisions of the Constitutional Court’s ruling of 9 May 2006, who were Aušra Rauličkytė and Milda Vainiutė, advisers to the President of the Republic, explained the reasons which were set forth in the petition, and which prompted the President of the Republic to apply to the Constitutional Court, as well as presented additional explanations.

The Constitutional Court

holds that:

I

1. The Law on the Constitutional Court entrenches the powers of the Constitutional Court to officially construe its rulings (Article 61). In its acts, the Constitutional Court held more than once that it also enjoys the powers to construe its other final acts.

2. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may only be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

The President of the Republic was a party concerned at the constitutional justice case in which the Constitutional Court’s ruling of 9 May 2006 was adopted and the construction of the provisions whereof is requested; in addition, under Paragraph 1 of Article 60 of the Law on the Constitutional Court, the President of the Republic is one of the subjects to whom rulings of the Constitutional Court are sent in all situations.

Thus, the President of the Republic has the right to request that the Constitutional Court construe the provisions of the Constitutional Court’s ruling of 9 May 2006.

3. A decision concerning construction of a ruling of the Constitutional Court shall be adopted at a sitting of the Constitutional Court as a separate document (Paragraph 2 of Article 61 of the Law on the Constitutional Court).

4. In its acts the Constitutional Court has held more than once that the purpose of the institute of the construction of rulings and other final acts of the Constitutional Court is to reveal the contents and meaning of the corresponding rulings or other final acts of the Constitutional Court more broadly and in more detail if it is necessary in order to ensure a proper execution of that ruling or other final act of the Constitutional Court so that the said ruling or other final act of the Constitutional Court would be followed.

5. The Constitutional Court has held more than once that a ruling of the Constitutional Court is integral; the operative part of a ruling of the Constitutional Court is based upon the arguments of the part of reasoning; while construing its ruling, the Constitutional Court is bound both by the content of the operative part and that of reasoning of its ruling; the decision adopted concerning the construction of a ruling of the Constitutional Court is inseparable from that ruling of the Constitutional Court.

6. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content.

The Constitutional Court has held more than once that this provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court means, among other things, that while construing its ruling, the Constitutional Court cannot construe its content so that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, the arguments and reasons upon which that ruling of the Constitutional Court is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case, subsequent to which the construed ruling was adopted, either. The Constitutional Court also held that the consideration of a petition requesting the construction of whether a ruling or another final act of the Constitutional Court does not imply a new constitutional justice case.

In this context, it needs to be noted that, as it has been held by the Constitutional Court more than once, the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on the issues within its competence according to the Constitution shall be final and not subject to appeal, also means that the rulings, conclusions and decisions of the Constitutional Court by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

Therefore, in the official construction (subsequent to a petition of the persons that participated in the case, other institutions and individuals, to whom the ruling of the Constitutional Court was sent, also on the initiative of the Constitutional Court itself) of rulings and other final acts of the Constitutional Court, the constitutional doctrine is not corrected. The correction of the official constitutional doctrine (which, undoubtedly, must always have a constitutional basis and be explicitly reasoned in a respective act of the Constitutional Court) should be related with the consideration of new constitutional justice cases and creation of new Constitutional Court precedents therein, but not with the official construction of provisions of rulings and other final acts of the Constitutional Court (the Constitutional Court’s decisions of 6 December 2007, 1 February 2008, 4 July 2008, and 15 January 2009).

7. It should also be noted that the uniformity and continuity of the official constitutional doctrine implies the necessity to construe each construed provision of a ruling or another final act of the Constitutional Court by taking account of the entire official constitutional doctrinal context, also of other (explicit and implicit) provisions of the Constitution, which are related with the provision (provisions) of the Constitution in the course of the construction of which in a ruling or another final act of the Constitutional Court the corresponding official constitutional doctrine was formulated. As the Constitutional Court has held more than once, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that ruling or another final act of the Constitutional Court, in other acts of the Constitutional Court, as well as with other provisions (explicit and implicit) of the Constitution.

II

1. The President of the Republic of Lithuania, the petitioner, requests the construction of whether the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 should be understood as meaning that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the factual circumstance is recognised that the term, i.e. the term of their powers, of the appointment of the aforesaid officials has expired if the factual circumstance that the term of appointment of the aforesaid officials to this office has expired is not disputed, are there any circumstances which would be constitutionally justifiable, under which the voting of a member of the Seimas against the release of the aforesaid officials from office upon the expiration of their powers would be compatible with the duty of a member of the Seimas, which stems from his oath to respect and execute the Constitution and laws, to conscientiously discharge the duties of the representative of the Nation as obligated by the Constitution.

2. In the reasoning part of the Constitutional Court’s ruling of 9 May 2006, it was held, inter alia, that:

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

One must also pay heed to the fact that the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis” (Item 15.3.1.1);

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

3. The Constitutional Court construed the said provisions in the Constitutional Court’s ruling of 9 May 2006 by interpreting, inter alia, Article 112 of the Constitution.

Article 112 of the Constitution provides:

In Lithuania, only citizens of the Republic of Lithuania may be judges.

Justices of the Supreme Court as well as its President chosen from among them shall be appointed and released by the Seimas upon the submission of the President of the Republic.

Judges of the Court of Appeal as well as its President chosen from among them shall be appointed by the President of the Republic upon the assent of the Seimas.

Judges and presidents of local, regional, and specialised courts shall be appointed, and their places of work shall be changed by the President of the Republic.

A special institution of judges provided for by law shall advise the President of the Republic on the appointment, promotion, transfer of judges, or their release from office.

A person appointed judge shall take an oath, according to the procedure established by law, to be faithful to the Republic of Lithuania and to administer justice only according to law.”

4. Article 112 of the Constitution which are designed for the release of judges from office should also be construed by taking account of Article 115 of the Constitution wherein the grounds for the release of judges from office are established, as well as of other provisions of the Constitution.

For instance, under Article 115 of the Constitution, judges (of courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution) shall be released from office according to the procedure established by law in the following cases: of their own will (Item 1); upon the expiration of the term of powers or upon reaching the pensionable age established by law (Item 2); due to the state of health (Item 3); upon the election to another office or upon their transfer, with their consent, to another place of work (Item 4); when their conduct discredits the name of judges (Item 5); upon coming into effect of court judgments convicting them (Item 6).

Under Article 108 of the Constitution, the powers of a justice of the Constitutional Court shall cease: upon the expiration of the term of powers (Item 1); upon his death (Item 2); upon his resignation (Item 3); when he is incapable of holding office due to the state of his health (Item 4); when the Seimas removes him from office in accordance with the procedure for impeachment proceedings (Item 5).

Under Articles 74 and 116 of the Constitution, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, and, under Article 74 of the Constitution, also the President and justices of the Constitutional Court, for a gross violation of the Constitution or a breach of the oath, or if it transpires that a crime has been committed, may be removed from office by the Seimas; this shall be performed according to the procedure for impeachment proceedings.

4.1. Under the Constitution, one of the grounds for the release of judges from office (termination of powers of judges) is the expiration of the term of powers of the judge.

It needs to be noted that the Constitution defines the consequences of the juridical fact—expiration of the term of powers of a judge or a justice of the Constitutional Court—by means of different formulas: “judges shall be released from office according to the procedure established by law” (Article 115), “the powers of a justice of the Constitutional Court shall cease” (Article 108).

While construing the formula “judges shall be released from office according to the procedure established by law” of the Constitution, it needs to be noted that this formula means that after the juridical fact—expiration of the term of powers of the judge—takes place, the institution which is provided for in the Constitution, i.e. the President of the Republic, or both the President of the Republic and the Seimas, have a duty to ascertain that such juridical fact has taken place, and, upon stating the existence of this fact, to adopt, under procedure established by law, a corresponding decision (an individual act of application of law) whereby the judge or President of a court, whose term of powers has expired, would be released from the office of the judge or the President of that court.

While construing the formula “the powers of a justice of the Constitutional Court shall cease” of the Constitution, it needs to be noted that after the juridical fact—expiration of the term of powers of a justice of the Constitutional Court—takes place, no institution has a duty to state the existence of such a juridical fact and adopt a corresponding decision (an individual act of application of law) whereby a justice of the Constitutional Court would be released from office.

4.2. It needs to be noted that the Constitution entrenches the final list of the grounds for releasing judges from office (i.e. discontinuation of powers) and that this list may not be expanded by means of laws or other legal acts (the Constitutional Court’s ruling of 22 October 2007).

Judges of courts of general jurisdiction and specialised courts may be released from office upon various constitutional grounds. On the one hand, some of such grounds are related with the free decision of the judge himself, as, for instance, under Item 1 of Article 115 of the Constitution, a judge may be released from office of his own will. Such grounds for releasing a judge from office is not linked with expiration of his powers or his pensionable age, although they sometimes can coincide. On the other hand, the Constitution provides also for such grounds for releasing a judge from office, which are linked with facts of an objective character, but not with the free decision of the judge, as, for instance, the expiration of the term of powers of the judge for which he was appointed to hold the office of the judge or that of the President of a court.

The Constitutional Court has held that, when appointing a judge, he should know what is the length of the term of powers (until the time established by law or until he reaches the pensionable age established by law) (the Constitutional Court’s rulings of 9 May 2006, 22 October 2007, and 20 December 2007).

Under Paragraph 4 of Article 111 of the Constitution, the formation and competence of courts shall be established by the Law on Courts of the Republic of Lithuania. Thus, the Constitution not only obliges the legislature to establish the formation and competence of all the courts of the Republic of Lithuania specified in Paragraph 1 of Article 111 of the Constitution (thus, also the status, formation, discharge of powers (activities) and the guarantees, the status of judges of these courts, etc.) by means of a law, but also entrenches expressis verbis the title of this law—the Law on Courts. Thus, also the term of powers of judges and Presidents of courts must be regulated precisely by the Law on Courts. The regulation of the term of powers of judges by means of a law is one of essential guarantees of the independence of judges.

4.3. In its acts, the Constitutional Court has formulated a broad official constitutional doctrine of the independence of judges and courts wherein the imperative of the independence of judges 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 entrenched in, and protected and defended by the Constitution, and upon which the entire legal system of Lithuania and the Constitution itself are based). The Constitutional Court has held more than once that the independence of judges and courts is not an end in itself but one of essential principles of a democratic state under the rule of law and a necessary condition of protection of human rights and freedoms; when administering justice, the courts must ensure the implementation of law which is entrenched in the Constitution and also in laws and other legal acts if they are not in conflict with the Constitution.

Alongside, the Constitutional Court has noted in its rulings of 27 November 2006 and 22 October 2007 that, while establishing the procedures for the release of a judge from office by the Law on Courts (taking into account, inter alia, the grounds (particularities thereof) for the release from office), in all cases one must heed the principle of independence of judges and courts.

It was also held in the Constitutional Court’s rulings of 27 November 2006 and 22 October 2007 that the judge’s behaviour—both related to the direct performance of his office and to his activity, which is not linked to his office—should not raise any doubts about his impartiality and independence.

It also needs to be noted that, as mentioned before, under Paragraph 6 of Article 112 of the Constitution, a person appointed judge shall take an oath, inter alia, to administer justice only according to law.

4.4. The Constitutional Court has noted that “the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion”, that “the legal regulation when the possibility of prolonging the term of powers of judges upon their expiration (irrespective of the term for which the powers of the judge are prolonged and of the level of court the powers of whose judge are prolonged) is provided may create preconditions for other persons to try to influence the judge directly or indirectly in order that he, when seeking prolongation of his powers, would make certain decisions in cases considered by him; such legal regulation should be regarded as enabling someone to induce the judge to consider cases and adopt decisions in them not only by obeying the law, as required by the Constitution (Paragraph 3 of Article 109), but also by heeding the fact how the decisions adopted in his considered cases will influence the possibility of prolonging his powers in the future”, as well as that “such legal regulation creates preconditions for a judge to adopt the decisions in cases considered by him, which would not correspond not the concept of justice of the judge himself, but the concept of justice of other persons”; the legal regulation providing for a possibility of prolonging the powers of judges upon the expiry of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of the independence of the judiciary, with Paragraph 2 of Article 109 of the Constitution whereby while administering justice, judges and courts shall be independent, and with Paragraph 3 of the same article which provides that, when considering cases, judges shall obey only the law, and with the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 9 May 2006 and 22 October 2007).

4.5. The Constitutional Court has held that the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded (the Constitutional Court’s rulings of 9 May 2006 and 22 October 2007).

It also needs to be noted that it was held in the Constitutional Court’s ruling of 9 May 2006 (the construction of the provisions of which is requested by the President of the Republic, the petitioner) that “<…> the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis”.

5. The Constitutional Court’s ruling of 9 May 2006 (the construction of the provisions of which is requested by the President of the Republic, the petitioner) also formulated, inter alia, the official constitutional doctrine of the release of judges and Presidents of courts from office, which was formulated by the Constitutional Court by taking account of the constitutional status of judges, which was revealed in the Constitutional Court’s ruling of 21 December 1999.

5.1. The Constitution establishes such a procedure of the appointment and release of judges and Presidents of courts of general jurisdiction and specialised courts of various standing, where these judges and Presidents of courts are appointed and released by institutions of other branches of state power—the executive and legislature, correspondingly, the President of the Republic and the Seimas, i.e. the institutions formed on a political basis.

5.2. In its rulings of 21 December 1999, 9 May 2006, and 27 November 2006, the Constitutional Court held that the powers of the President of the Republic entrenched in Item 11 of Article 84 of the Constitution in the formation of the judiciary are a significant element of the constitutional status of the Head of State; that changing or limiting the specified powers of the President of the Republic in this sphere, as well as the establishment of such a procedure for the implementation of these powers that the President of the Republic would be conditioned or bound by decisions of institutions or officials, which are not provided for in the Constitution, would mean a change in the constitutional competence of the President of the Republic. Also, any change or restriction of the powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution to advise the President of the Republic on the appointment, promotion, transfer of judges of all courts or their release from office would mean a change in the purpose of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution which arises from the Constitution itself (the Constitutional Court’s rulings of 9 May 2006 and 27 November 2006).

The President of the Republic participates (in the ways established in Paragraphs 2, 3 and 4 of Article 112 and Item 11 of Article 84 of the Constitution) when appointing and releasing judges of courts of general jurisdiction of all levels, starting from the lowest level—local courts—and finishing by the highest level—the Supreme Court (as well as including judges of all specialised courts), however, his powers regarding judges of different courts of general jurisdiction are different. Judges and Presidents of local, regional, and specialised courts are appointed and released by the President of the Republic and regarding this he does not apply to the Seimas. Item 11 of Article 84 of the Constitution provides, inter alia, that the President of the Republic shall submit candidatures of the Supreme Court justices to the Seimas and, upon the appointment of all the Supreme Court justices, submit from among them to the Seimas the President of the Supreme Court; appoint judges of the Court of Appeal, and from among them, provided the Seimas gives assent to their candidatures, the President of the Court of Appeal; appoint judges and presidents of regional and local courts, and change their places of work; in cases provided for by law, shall submit that the Seimas release judges from office.

As it was noted in the Constitutional Court’s rulings of 9 May 2006 and 21 September 2006, in order to appoint or release a judge of the Court of Appeal or the President of this court, the President of the Republic must apply to the Seimas and, if he gets the assent of the Seimas, he may appoint the corresponding person as a judge of the Court of Appeal or the President of this court or release the corresponding judge of the Court of Appeal or the President of this court from his office, also, inter alia, if certain circumstances significant to such appointment or release from office come to light, he might decide not to appoint that person as a judge of the Court of Appeal or the President of this court, and submit the Seimas with another candidature, or not to release the corresponding judge of the Court of Appeal or the President of this court from office (if it is not obligatory to release that judge from office under the Constitution).

5.3. Paragraph 5 of Article 112 of the Constitution provides that a special institution of judges provided for by law shall advise the President of the Republic on the appointment, promotion, transfer of judges, or their release from office.

The Constitutional Court interprets the special institution of judges provided for in the Constitution as an important element of self-government of the Judiciary which is an independent state power; while regulating the relations linked to appointment, promotion, transfer of judges or their release from office, one may not deny the indicated special competence of the institution of judges, its constitutional nature and purpose; this special institution of judges is a balance to the President of the Republic, who is a subject of the executive (the Constitutional Court’s rulings of 21 December 1999, 13 December 2004, and 9 May 2006). The full-fledgedness, autonomy, independence of the judiciary and the constitutional principle of the separation of powers do not allow construing the constitutional purpose and functions of the said special institution of judges in such a way so that its role of a balance to the President of the Republic in the area of the formation of the corps of judges would be denied or ignored (the Constitutional Court’s ruling of 9 May 2006).

6. In the Constitutional Court’s ruling of 9 May 2006 (the construction of the provisions of which is requested by the President of the Republic, the petitioner) it was emphasised that the interaction of state power may not be treated as their conflict or competition, thus, also the checks and balances that the judicial power (its institutions) and other state powers (its institutions) have towards each other, may not be treated as mechanisms of the opposition of powers; the model of reciprocity between state powers entrenched in the Constitution is also described by the reciprocal control and balance of state powers (their institutions), which does not allow one state power to dominate in respect of another (other) state power (powers), and by their cooperation, of course, without overstepping the limits established by the Constitution—without interfering in the implementation of powers of other state power.

7. As mentioned before, the legislative power also participates in the course of appointing and releasing justices and President of the Supreme Court and judges and President of the Court of Appeal. The constitutional powers of the Seimas to appoint and release judges are entrenched in the provisions of Paragraphs 2 and 3 of Article 112 of the Constitution and Item 10 of Article 67 thereof which provides, inter alia, that the Seimas shall appoint justices and the President of the Supreme Court. Thus, the Seimas participates in appointing and releasing not all judges, but only the judges and Presidents of only the two courts of highest standing. It also needs to be noted that the Seimas implements these powers together with the President of the Republic.

7.1. In order that a justice or President of the Supreme Court be appointed or released, the President of the Republic must submit a corresponding person to the Seimas so that the Seimas appoint or release him, while the decision regarding the appointment or release of the person as justice or President of this court is adopted by the Seimas. The Seimas, after it receives the submission by the President of the Republic, may appoint the corresponding person as justice or President of the Supreme Court, and, also (inter alia, if certain circumstances come to light which are important to the appointment or release) it can decide not to appoint this person as justice or President of the Supreme Court or it can decide not to release the corresponding justice of the Supreme Court or the President thereof from office, if, under the Constitution, the release of the justice in question is not mandatory.

7.2. As mentioned before, Article 115 of the Constitution also provides for such grounds for releasing a judge from office, which are linked with facts of an objective character, but not with the free decision of the judge, as, for instance, the expiration of the term of powers of the judge for which he was appointed to hold the office of the judge or that of the President of a court. When there is such a constitutional ground for releasing a justice of the Supreme Court or President thereof from office, the President of the Republic must ascertain whether the said fact of an objective character really exists, i.e. whether the term of powers of the justice of the Supreme Court or President thereof, which is established by law, has expired, and, provided the term of powers has expired, he must apply to the special institution of judges which is provided for in Paragraph 5 of Article 112 of the Constitution so that this institution would advise him as for releasing of a justice of the Supreme Court or President thereof from office, because the term of powers of the said justice or President of court has expired. In its turn, however, the said special institution of judges must ascertain whether the said fact of an objective character really exists (whether the term of powers of the justice of the Supreme Court or President thereof, which is established by law, has expired), and, provided this fact exists, it must advise the President of the Republic to release the justice of the Supreme Court or President thereof from office. Upon receiving such advice from the special institution of judges, the President must submit the corresponding person to the Seimas in order that the Seimas release the said person from office.

Upon receiving the submission by the President of the Republic to release the justice of the Supreme Court or President thereof from office, the Seimas must ascertain whether the said fact of an objective character really exists, i.e. whether the term of powers of the justice of the Supreme Court or President thereof, which is established by law, has expired, and, provided it is recognised that the term of powers has expired, the Seimas must adopt the corresponding individual act of application of law regarding releasing the justice of the Supreme Court or President thereof from the office. Thus, in case the existence of the objective fact is stated that the term of powers of the justice of the Supreme Court or President thereof has expired, the release of the corresponding person from office is mandatory. The same is applied mutatis mutandis to chairpersons of divisions of the Supreme Court.

8. It has also been mentioned that the Constitutional Court has held that the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted); such exceptional legal regulation would be constitutionally grounded.

In its rulings of 9 May 2006 and 22 October 2007, the Constitutional Court grounded such compatibility of holding the office of a judge with the Constitution upon the fact that such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions would be created for injuring the rights and legitimate interests of persons and certain constitutional values would be violated. However, such a judge must be released after the corresponding legal fact takes place with which the prolongation of the powers of the judge is related, i.e. when the consideration of corresponding cases is over. As long as the consideration of the said cases is not over, the judge whose term of powers has been prolonged is a fully fledged judge: he enjoys the same powers to administer justice (consider cases at law) as the rest of the judges of the corresponding court; his status of a judge is indivisible and the same restrictions of his activity are applied in his regard; he has the same responsibility and immunities as all other judges; thus, he has to receive the same load of work (inter alia, due to the fact that the place of the judge, who has to discharge an important constitutional function—to administer justice—is not vacant yet in the said court).

It also needs to be noted that, as mentioned before, it was, inter alia, held in the provision (Subitem 15.3.1.1) of the Constitutional Court’s ruling of 9 May 2006 that the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis. It was also mentioned that, in its ruling of 9 May 2006, the Constitutional Court also held that the legal regulation providing for a possibility of prolonging the powers of judges upon the expiry of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of the independence of judges and courts, with Paragraph 2 of Article 109 of the Constitution whereby while administering justice, judges and courts shall be independent, and with Paragraph 3 of the same article which provides that, when considering cases, judges shall obey only the law, and with the constitutional principle of a state under the rule of law.

9. In the Constitutional Court’s ruling of 9 May 2006 (the construction of the provisions of which is requested by the President of the Republic, the petitioner) it was held, inter alia, that the powers of the Presidents of courts, the chairpersons of the divisions of courts and other judges who hold administrative offices in courts may not be prolonged by law, or by any other legal act establishing general norms either—in general such powers may not be prolonged as after the term of powers has expired, they are discontinued (an individual act on the application of law must be adopted concerning the release of the corresponding person from office).

Thus, the conclusion should be drawn that there are not any constitutionally justifying circumstances due to which the non-release of Presidents of courts or chairpersons of divisions of courts from office upon the expiry of their term of powers would be compatible with the Constitution, since the expiry of powers of Presidents of courts or chairpersons of divisions of courts is a fact of an objective character, which is not related with their free decision. The non-release of Presidents of courts or chairpersons of divisions of courts from office after their term of powers has expired may not be treated as an exception to the general constitutional prohibition on prolonging the powers of a judge upon the expiry of his term of powers or reaching the pensionable age, since, under the Constitution, such exception may be applied only in cases when, upon the expiry of the powers of the judge (but not of the President of a court nor those of chairpersons of divisions of the court), the consideration of certain cases, which was begun, has not been finished.

9.1. In addition, also such situations are possible, where the President of the Republic, after he receives the advice from the special institution of judges specified in Paragraph 5 of Article 112 of the Constitution, applies to the Seimas regarding the release of the President of the Supreme Court (or the chairperson of a division of this court) from office due to the objective fact—expiry of the term of powers for which he was appointed to hold the office of the President of the Supreme Court (or the chairperson of a division of this court), however, the Seimas does not adopt, in time, the corresponding individual act of application of law regarding his release from office due to the fact that the respective presentation by the President of the Republic was received at the time when no ordinary or extraordinary session of the Seimas takes place. Under the Constitution, in such a case the President of the Supreme Court (or the chairperson of a division of this court), whose term of powers in the capacity of the President (chairperson) has expired de facto, however, de jure he has not been released since the corresponding individual act of application of law has not been adopted, may not be regarded as having the powers of the President of the Supreme Court (or the chairperson of a division of this court). On the other hand, the President of the Supreme Court (or the chairperson of a division of this court) whose term of powers has expired must and may discharge all his powers as a justice (if his powers of the justice has not expired).

9.2. Taking account of the arguments set forth, the conclusion should be drawn that in cases when the fact of an objective character is ascertained that the term of powers of the President of the Supreme Court (or the chairperson of a division of this court) has expired, there are not any constitutionally justifiable circumstances under which the non-release of the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers would be compatible with the Constitution, otherwise, there would occur a situation prohibited by the Constitution.

10. It has been mentioned that the President of the Republic requests that the Constitutional Court construe whether the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 should be understood as meaning that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the factual circumstance is recognised that the term, i.e. the term of their powers, of the appointment of the aforesaid officials has expired.

10.1. It has been mentioned that the constitutional powers of the Seimas to appoint and release judges are entrenched in the provisions of Paragraphs 2 and 3 of Article 112 of the Constitution and Item 10 of Article 67 thereof.

It needs to be noted that the Seimas, while implementing its constitutional powers, discharges the classical functions of the parliament of a democratic state under the rule of law.

While passing laws and other legal acts, the Seimas and each member of the Seimas are bound by the Constitution, constitutional laws and laws, as well as the Statute of the Seimas which has the power of law Seimas (the Constitutional Court’s rulings of 4 April 2006 and 22 February 2008).

One of democratic principles of adoption of decisions is the majority principle (the Constitutional Court’s rulings of 22 July 1994 and 4 April 2006). The political will of the majority of members of the Seimas is reflected in Seimas resolutions (the Constitutional Court’s conclusion of 31 March 2004 and its ruling of 4 April 2006). Under the Constitution, the will of the Seimas regarding adoption of corresponding resolutions cannot be expressed otherwise than by voting by members of the Seimas at a Seimas sitting and adopting a corresponding legal act.

It also needs to be noted that, under the Constitution, every decision of the Seimas, no matter what its expression (legal form) might be, can be impugned before the Constitutional Court with regard to the compliance of this decision (act of the Seimas) with legal acts of higher legal force, inter alia (and, first of all), the Constitution. Under the Constitution, the subjects specified in Paragraph 1 of Article 106 of the Constitution can do so, inter alia, not less than 1/5 of all members of the Seimas, i.e. a group of not less than 29 members of the Seimas.

10.2. While in office, and implementing their rights, members of the Seimas are guided by the Constitution, state interests, their own consciences, and may not be restricted by any mandates. The constitutional doctrine of the free mandate of a member of the Seimas, the construction of some aspects of which is requested by the President of the Republic, is related, inter alia, with actions of a member of the Seimas in the course of appointing and releasing judges. It should be construed by taking account of the entire official constitutional doctrinal context, as well as of the other related provisions of the Constitution; no official constitutional doctrinal provision of a ruling of the Constitutional Court or other final act thereof may be construed in isolation, by ignoring its notional and systemic links with other official constitutional doctrinal provisions.

The constitutional status of a member of the Seimas integrates the duties, rights and guarantees of activity of the member of the Seimas as a representative of the Nation; this status is based upon the constitutional principle of the free mandate of a member of the Seimas. The Constitutional Court has held more than once that the essence of a free mandate is that a representative of the Nation is free to implement the rights and duties vested in him without restricting this freedom by mandates of the electorate, political requirements of parties or organisations which have promoted him; that the imperative mandate and the right of pre-term recall of a member of the Seimas are not recognised; the free mandate of a member of the Seimas entrenched in the Constitution is one of the guarantees of independence of activities and equal rights of members of the Seimas.

The activity of a member of the Seimas, which is based upon the constitutional principle of the free mandate of a member of the Seimas, cannot be opposed to the powers of the Seimas as representation of the Nation. While implementing the constitutional powers, the Seimas has a duty to adopt corresponding decisions, as, for instance, under the provisions of Item 4 of Article 67 and Article 80 of the Constitution, the Seimas calls a regular election of the President of the Republic, which is held on the last Sunday two months before the expiration of the term of office of the President of the Republic; according to the provisions of Paragraph 3 of Article 59 of the Constitution, the Seimas shall adopt a corresponding resolution regarding the loss of the mandate of a member of the Seimas who either does not take the oath according to the procedure established by law, or who takes a conditional oath, etc. Thus, all members of the Seimas, as representatives of the Nation, not only acquire corresponding rights, but also they must discharge certain duties arising from the Constitution and laws which are not in conflict with it.

10.3. In its ruling of 25 January 2001, wherein some provisions of the Statute of the Seimas were construed, the Constitutional Court held that every member of the Seimas, in accordance with the Constitution, the interests of the state, as well as his own conscience, without restriction by any mandates, may decide on how he will vote. It needs to be noted that the constitutional doctrine of the free mandate of a member of the Seimas was developed not only in the Constitutional Court’s ruling of 25 January 2001, but also in other acts of the Constitutional Court, therefore, the constitutional principle of the free mandate of a member of the Seimas should be construed by taking into account, inter alia, the entire official constitutional doctrinal context.

In its rulings of 25 May 2004 and 1 July 2004, the Constitutional Court held that the free mandate of a member of the Seimas entrenched in the Constitution may not be understood only as a permission to act only at one’s discretion, to act by following only one’s conscience by ignoring the Constitution. The Constitution implies the notion of discretion and conscience of a member of the Seimas, according to which no gap should exist between the discretion of a member of the Seimas and the conscience of a member of the Seimas on the one hand, and the requirements of the Constitution, as well as values entrenched in and protected by the Constitution on the other hand: according to the Constitution, the discretion of a member of the Seimas and his conscience should be oriented towards the Constitution, and the interests of the Nation and the State of Lithuania.

In its rulings of 25 May 2004 and 1 July 2004, the Constitutional Court also held that the free mandate of a member of the Seimas is not a privilege of a representative of the Nation, it is rather one of the legal measures ensuring that the Nation will be properly represented in its democratically elected representation, the Seimas, and that the representation of the Nation, the Seimas, will act only in the interests of the Nation and the State of Lithuania. Therefore, the free mandate of a member of the Seimas may not be used in the interests other than those of the Nation and the State of Lithuania.

The constitutional consolidation of the free mandate of a member of the Seimas, as well as the essence of the Seimas as the representation of the Nation, implies the constitutional duty of the Seimas to set, by means of legal acts, the legal regulation which would provide for no conditions for using the free mandate of a member of the Seimas in the interests other than the interests of the Nation and the State of Lithuania, i.e. for the private benefit of a member of the Seimas, his close relatives or other persons, for their personal interests or the interests of a group, in the interests of political parties or political organisations, public or other organisations, and other persons, which nominated or supported the candidate to the office of a member of the Seimas, territorial communities, voters of the constituency in which a member of the Seimas was elected; the legislature should set the legal regulation which would ensure that a member of the Seimas work only for the Nation and the State of Lithuania, and avoid the confrontation of the interests of the Nation and the State of Lithuania with private interests of a member of the Seimas, his close relatives or other persons (personal interests or the interests of a group), interests of political parties or political organisations, public or other organisations, and other persons, which nominated or supported the candidate to the office of a member of the Seimas, territorial communities, voters of the constituency in which a member of the Seimas was elected; alongside, the activity of a member of the Seimas should be legally regulated in the manner so that it would be possible to efficiently control whether such confrontation does not exist, whether a member of the Seimas does not use his free mandate in the interests other than the interests of the Nation and the State of Lithuania; in case he disregards the aforementioned requirements of the Constitution, the member of the Seimas should be held liable pursuant to the Constitution and laws (the Constitutional Court’s ruling of 1 July 2004).

The free mandate of members of the Seimas must be used in such a way, so that the Seimas could effectively act in the interests of the Nation and the State of Lithuania, and so that it would properly perform its constitutional obligation (the Constitutional Court’s ruling of 4 April 2006).

10.4. Under Paragraph 2 of Article 59 of the Constitution, the elected member of the Seimas shall acquire all the rights of a representative of the Nation only after taking at the Seimas an oath to be faithful to the Republic of Lithuania. According to the text of the oath of members of the Seimas entrenched in Article 5 of the Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania” of 25 October 1992, which is a constituent part of the Constitution, a member of the Seimas swears to respect and execute the Constitution and laws. The Constitution unreservedly requires that a Seimas member take an oath to be loyal to the state of Lithuania only, that he pledge to respect and observe the Constitution and laws (the Constitutional Court’s ruling of 11 November 1998).

The oath of a member of the Seimas obligates him in his activity to follow the Constitution, the interests of the state and his conscience, and not to be bound by any mandates. His duty to respect and execute the Constitution and laws, and to conscientiously exercise the duties of a representative of the Nation in a manner he is obliged to by the Constitution originates from the oath of a member of the Seimas (the Constitutional Court’s ruling of 1 July 2004). In its rulings of 25 May 2004 and 1 July 2004, the Constitutional Court held that the act of the oath of a member of the Seimas is constitutionally legally important: when taking the oath, the elected member of the Seimas publicly and solemnly accepts an obligation to act in line with the obligations of the oath and to breach the oath under no circumstances; from the moment of taking the oath his duty emerges to act only in the way he is obliged by the oath taken and to breach this oath under no circumstances.

10.5. In this context it needs to be noted that the free mandate of a member of the Seimas may not be identified with absolutely free actions of a member of the Seimas, made only at his own discretion while ignoring the Constitution, since the Constitution implies only such concept of the discretion of a member of the Seimas, and only such conscience of a member of the Seimas, according to which there is no gap or contradictions between the discretion of a member of the Seimas and the conscience of a member of the Seimas on the one hand, and the requirements of the Constitution and the values protected and defended in it, on the other hand.

Thus, the conclusion should be drawn that the constitutional principle of the free mandate of a member of the Seimas may not be understood as absolute freedom (which is not restricted by the Constitution and laws) of a member of the Seimas to act in such a manner so that the Seimas would not be able to implement the requirements arising from the Constitution and that decisions incompatible with the Constitution would be adopted; a different construction of the constitutional principle of the free mandate of a member of the Seimas would mean disregard of the imperatives arising for a member of the Seimas from the Constitution and the oath of a member of the Seimas.

In this context, it should also be held that the duty of a member of the Seimas to act in the manner obligated by the oath taken by a member of the Seimas, while heeding the requirements arising from the Constitution and laws which are not in conflict with it, may not be interpreted as meaning the restriction of the constitutional principle of the free mandate of a member of the Seimas. The construction of this principle that, purportedly, a member of the Seimas, while discharging his constitutional obligation, would be allowed in certain cases to disregard the Constitution and laws which are not in conflict with it, is incompatible with the constitutional concept of the principle of the free mandate of a member of the Seimas.

10.6. Under Paragraph 4 of Article 111 of the Constitution, the formation and competence of courts shall be established by the Law on Courts of the Republic of Lithuania. Thus, the Constitution obligates the legislature to regulate the founding and the competence, the formation and execution of powers of all courts of the Republic of Lithuania, inter alia, the status of judges of these courts etc., thus, including the Supreme Court, by means of a law. In the context of this decision of the Constitutional Court it needs to be noted that after the length of the term of powers (term of office) of the President of the Supreme Court (or of the chairperson of a division of the same court) has been established by means of a law, there is a duty to heed the length of the term of powers (term of office) established by law, since the Seimas and each member of the Seimas, while discharging the functions established in, and the powers granted by the Constitution, are bound by the Constitution and laws. Thus, neither the Seimas nor members of the Seimas can ignore the Constitution as well as the legal regulation entrenched in the law establishing the length of the term of powers (term of office) of the President of the Supreme Court (or of the chairperson of a division of the same court).

11. It has been mentioned that the President of the Republic, the petitioner, requests that the Constitutional Court construe whether the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 should be understood as meaning that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of Presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the factual circumstance is recognised that the term, i.e. the term of their powers, of the appointment of the aforesaid officials has expired; and whether the same provisions should be understood as meaning that, if the factual circumstance that the term of appointment of the aforesaid officials to this office has expired is not disputed, whether there are any circumstances which would be constitutionally justifiable, under which the voting of a member of the Seimas against the release of the aforesaid officials from office upon the expiration of their powers would be compatible with the duty of a member of the Seimas, which stems from his oath to respect and execute the Constitution and laws, to conscientiously discharge the duties of the representative of the Nation as obligated by the Constitution.

It has been held in this decision of the Constitutional Court that the free mandate of a member of the Seimas may not be identified with absolutely free actions of the members of the Seimas, made only at his own discretion while ignoring the Constitution. The Constitution implies only such concept of the discretion of a member of the Seimas, and only such conscience of a member of the Seimas, according to which there is no gap or contradictions between the discretion of a member of the Seimas and the conscience of a member of the Seimas on the one hand, and the requirements of the Constitution and the values protected and defended in it, on the other hand. Thus, under the Constitution, when the Seimas implements the constitutional empowerment (constitutional duty) in the course of adopting, at a sitting of the Seimas, a corresponding individual act of application of law regarding the release of the President of the Supreme Court (or of the chairperson of a division of the same court) from office upon the expiration of his term of powers, the duty arises for the members of the Seimas to ascertain whether the said fact of an objective character really exists, i.e. whether the term of powers of the President of the Supreme Court (or of the chairperson of a division of the same court), which is established by law, has expired, and, provided such fact of an objective character has been established, they must act in the manner that the Seimas would be able to implement the requirement arising from the Constitution to release the President of the Supreme Court (or of the chairperson of a division of the same court) from office upon the expiry of their term of powers, which is established by law. A different construction of the constitutional principle of the free mandate of a member of the Seimas—purportedly, that this mandate could be understood as absolute freedom of a member of the Seimas to act in such a manner so that the Seimas would not execute the requirements arising from the Constitution to adopt corresponding decisions—would mean that conditions for adopting decisions incompatible with the Constitution are created.

Therefore, there are not any constitutional arguments permitting asserting that, purportedly, the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 (the construction of the provisions of which is requested by the President of the Republic, the petitioner) may be understood that the free mandate of a member of the Seimas also means that a member of the Seimas can vote so that the judges who hold the office of presidents of courts and chairpersons of divisions of courts—the President of the Supreme Court of Lithuania and chairpersons of divisions of the Supreme Court of Lithuania—who are to be released from office by the Seimas, would not be released from office upon the expiration of the term of their powers, although the fact of an objective character is recognised that the term of office, i.e. the term of their powers, of the appointment of the aforesaid officials has expired; also, there are not any constitutional arguments permitting asserting that if the fact of an objective character that the term of appointment of the aforesaid officials to this office has expired is not disputed, there might be some constitutionally justifiable circumstances, under which the voting of a member of the Seimas against the release of the aforesaid officials from office upon the expiration of their powers would be compatible with the duty of a member of the Seimas, which stems from his oath to respect and execute the Constitution and laws, to conscientiously discharge the duties of the representative of the Nation as obligated by the Constitution. Otherwise, one would deviate from the imperatives entrenched in the Constitution, since the non-release of the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers would be incompatible with the requirements arising from Paragraph 2 of Article 112 and Item 2 of Article 115 of the Constitution, with the constitutional principle of a state under the rule of law; also conditions would be created to interpret the constitutional principle of the free mandate of a member of the Seimas as the right of a member of the Seimas, which is unrestricted by the Constitution and laws, to act in the manner that decisions incompatible with the Constitution would be adopted and the imperatives arising from the Constitution and the oath of a member of the Seimas would be disregarded.

12. Taking account of the arguments set forth, the conclusion should be drawn that the provisions “It is clear that in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him on the release of a judge from office because his term of powers has expired or he reached the pensionable age established by law or the court judgment convicting that judge has come into effect, the said special institution of judges must make sure whether the specified facts actually exist and, if they do, it must advise the President of the Republic to release the judge from office. It should be emphasised that if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution establishes that the said objective facts really exist, it, under the Constitution, may not decide not to advise the President of the Republic to release the judge from office, and the President of the Republic, when he receives such advice, must release the corresponding judge from office (if the judge to be released from office is a justice of the Supreme Court—he must propose that the Seimas release him from office and if the judge to be released from office is a judge of the Court of Appeal—he must request for the assent of the Seimas in order to release him from office). It should be held that, under the Constitution, in such cases the judge must be released from office. <…> One must also pay heed to the fact that the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis” (Item 15.3.1.1) and “If judges were appointed as <…> Presidents of courts, Chairpersons of the divisions of courts or had to hold any other administrative offices for a certain term established by law, after the term has expired they must be released from office and, therefore, as well as when appointing them to that office, a corresponding individual act on the application of law must be adopted. The powers of the Presidents of courts, the Chairpersons of the divisions of courts and other judges who hold administrative offices in courts may not be prolonged by law, or by any other legal act establishing general norms either—in general such powers may not be prolonged as after the term of powers has expired, they are discontinued (an individual act on the application of law must be adopted concerning that), and then, according to the procedure established by law, it must be anew decided whether the same judge (if the laws provide for such a possibility) or another person has to be appointed as the President of that court, the Chairperson of a division of court, etc.” (Item 22) of Section II of the reasoning part of the Constitutional Court’s ruling of 9 May 2006 mean, inter alia, that, under the Constitution, when the Seimas implements the constitutional powers related with releasing the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers (term of office), and when the corresponding individual act of application of law regarding this issue is adopted at the sitting of the Seimas, the members of the Seimas are under obligation to act in the manner that the Seimas would be able to implement the requirement arising from the Constitution to release the President of the Supreme Court (or of the chairperson of a division of the same court) from office upon the expiry of their term of powers, which is established by law; otherwise, one would deviate from the imperatives arising from Paragraph 2 of Article 112 and Item 2 of Article 115 of the Constitution and from the constitutional principle of a state under the rule of law, while the mandate of a member of the Seimas would be used by disregarding the requirements arising from the Constitution and the oath of a member of the Seimas. The Constitution implies only such concept of the discretion of a member of the Seimas, and only such conscience of a member of the Seimas, according to which there is no gap or contradictions between the discretion of a member of the Seimas and the conscience of a member of the Seimas on the one hand, and the requirements of the Constitution and the values protected and defended in it, on the other hand. In cases when the fact of an objective character is ascertained that the term of powers of the President of the Supreme Court (or the chairperson of a division of this court) has expired, there are not any constitutionally justifiable circumstances under which the non-release of the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers would be compatible with the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To construe that the provisions of Subitem 15.3.1.1 and Item 22 of Section II of the reasoning part of the 9 May 2006 ruling of the Constitutional Court of the Republic of Lithuania:

– “It is clear that in the cases when the President of the Republic applies to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution so that it would advise him on the release of a judge from office because his term of powers has expired or he reached the pensionable age established by law or the court judgment convicting that judge has come into effect, the said special institution of judges must make sure whether the specified facts actually exist and, if they do, it must advise the President of the Republic to release the judge from office. It should be emphasised that if the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution establishes that the said objective facts really exist, it, under the Constitution, may not decide not to advise the President of the Republic to release the judge from office, and the President of the Republic, when he receives such advice, must release the corresponding judge from office (if the judge to be released from office is a justice of the Supreme Court—he must propose that the Seimas release him from office and if the judge to be released from office is a judge of the Court of Appeal—he must request for the assent of the Seimas in order to release him from office). It should be held that, under the Constitution, in such cases the judge must be released from office. <…> One must also pay heed to the fact that the said constitutionally reasoned exception of the general constitutional prohibition on prolonging the powers of a judge when they have expired or when the judge has reached pensionable age may not be interpreted as, purportedly, meaning that the powers of the Presidents of courts or of the chairpersons of divisions of courts may be prolonged on any similar basis” (Item 15.3.1.1);

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

mean, inter alia, that, under the Constitution the Republic of Lithuania, when the Seimas implements the constitutional powers related with releasing the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers (term of office), and when the corresponding individual act of application of law regarding this issue is adopted at the sitting of the Seimas, the members of the Seimas are under obligation to act in the manner that the Seimas would be able to implement the requirement arising from the Constitution to release the President of the Supreme Court (or of the chairperson of a division of the same court) from office upon the expiry of their term of powers, which is established by law; otherwise, one would deviate from the imperatives arising from Paragraph 2 of Article 112 and Item 2 of Article 115 of the Constitution of the Republic of Lithuania and from the constitutional principle of a state under the rule of law, while the mandate of a member of the Seimas would be used by disregarding the requirements arising from the Constitution and the oath of a member of the Seimas. In cases when the fact of an objective character is ascertained that the term of powers of the President of the Supreme Court (or the chairperson of a division of this court) has expired, there are not any constitutionally justifiable circumstances under which the non-release of the President of the Supreme Court (or the chairperson of a division of this court) from office upon the expiry of the term of his powers would be compatible with the Constitution of the Republic of Lithuania.

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

The decision is pronounced 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