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On reducing the salaries of judges

Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-
25/2000-31/2000-35/2000-39/2000-8/01-31/01

 

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” of 28 December 1999 with the Constitution of the Republic of Lithuania

 

Vilnius, 12 July 2001

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Egidijus Rumbutis, a consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

Algis Baležentis, the chief specialist of the Private Law Division of the Legal Department of the Ministry of Justice of the Republic of Lithuania, Vida Žagūnienė, Head of the Division for the Security Programmes of the State and Society of the Budget Department of the Ministry of Finance of the Republic of Lithuania, and Viktorija Jakubonienė, Deputy Director of the Legal Department of the same ministry, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 28 June 2001, in its public hearing, considered case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01 subsequent to the petition submitted to the Constitutional Court by the petitioners—the First Vilnius City Local Court, the Higher Administrative Court, and the Vilnius Regional Administrative Court—requesting an investigation into the compliance of Article 4, Paragraphs 1 and 3 of Article 5, Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, the Republic of Lithuania’s Law Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the Resolution of the Government of the Republic of Lithuania (No. 499) “On the Temporary Experimental Procedure for Work Pay of Heads of State Authority, State Administration and Law Enforcement Bodies and of Other Officials” of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” of 28 December 1999 with the principle of a state under the rule of law established in the Constitution of the Republic of Lithuania, Articles 5 and 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania.

The above-mentioned petitions were joined into one case by the Constitutional Court’s decision of 20 June 2001.

The Constitutional Court

has established:

I

On 29 November 1991, the Government adopted the Resolution (No. 499) “On the Temporary Experimental Procedure for Work Pay of Heads of State Authority, State Administration and Law Enforcement Bodies and of Other Officials” (Official Gazette Valstybės žinios, 1992, No. 3-62).

On 24 June 1997, the Government adopted the Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” (Official Gazette Valstybės žinios, 1997, No. 60-1428), by which the official remuneration of judges of the Republic of Lithuania were confirmed.

On 28 December 1999, the Government adopted the Resolution No. (1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” (Official Gazette Valstybės žinios, 1999, No. 73-2257), by which the Government Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997 was partially amended. It is established in this resolution that the official remuneration (its coefficients) shall be reduced from 2.3 till 1.75 times, and that as of 1 January 2000 the official remuneration shall be calculated by applying coefficient 1.75.

On 23 December 1999, the Seimas passed the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets (Official Gazette Valstybės žinios, 1999, No. 113-3295) Appendix 6 whereof provides for expenses for the law institutions on the basis of the Programme for Implementation of the Outline of the Legal System Reform.

On 13 July 2000, the Seimas passed the Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets (Official Gazette Valstybės žinios, 2000, No. 61-1835) by means of Article 9 whereof, upon the amendment of Appendix 6 to the aforementioned law, fewer expenses were provided for law institutions on the basis of the Programme for Implementation of the Outline of the Legal System Reform than were established in the aforementioned law in its wording of 23 December 1999.

On 29 August 2000, the Seimas adopted the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials (Official Gazette Valstybės žinios, 2000, No. 75-2271; hereinafter also referred to as the Law). On 17 October 2000, the Seimas adopted the Republic of Lithuania’s Law Amending the Law on the Work Pay of State Politicians, Judges and State Officials (Official Gazette Valstybės žinios, 2000, No. 92-2887). On 27 March 2001, the Seimas adopted the Republic of Lithuania’s Law Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials (Official Gazette Valstybės žinios, 2001, No. 29-918).

1. The petitioner—the First Vilnius City Local Court—was considering a case regarding the awarding of compensation for remuneration not received. By means of its ruling of 7 April 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of Article 7, Paragraph 5 of Article 7, Chapter II of the Appendix to the same law as well as other provisions of the same law by which by one or another form the remuneration for work and other payments in fact received by judges exercising judicial functions in a professional capacity until 1 January 2000 which had been paid to them from the budget of the state were reduced with Articles 109 and 114 of the Constitution.

The petition of the petitioner is based on the fact that the arguments and conclusions of the Constitutional Court’s rulings of 6 December 1995 and 21 December 1999, and its decision of 12 January 2000 provide one with the grounds to presume that Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of Article 7, Paragraph 5 of Article 7, Chapter II of the Appendix to the same law as well as other provisions of the same law by which by one or another form the remuneration for work and other payments in fact received by judges exercising judicial functions in a professional capacity until 1 January 2000 which had been paid to them from the budget of the state were reduced conflict with Articles 109 and 114 of the Constitution.

2. The petitioner—the First Vilnius City Local Court—was considering a civil case regarding the payment of salaries. By means of its ruling of 11 April 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of government resolution No. 1494 of 28 December 1999 by which the judges’ salaries coefficient was reduced from 2.5 till 1.75 with Articles 109 and 114 of the Constitution guaranteeing the independence of courts and judges.

3. The petitioner—the First Vilnius City Local Court—was considering a civil case regarding the payment of salaries. By means of its ruling of 16 May 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of government resolution No. 1494 of 28 December 1999 by which the official remuneration of judges for chairpersons of courts was reduced with Articles 109 and 114 of the Constitution.

The petition of the petitioner is based on the fact that any attempts to reduce salaries of judges are treated as encroachment upon the guarantees of the principle of the independence of courts and judges which is entrenched in the Constitution.

4. The petitioner—the First Vilnius City Local Court—was considering a civil case regarding the reduced official remuneration. By means of its ruling of 16 May 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Paragraph 1 of Article 1 of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets which is linked with the amount approved in Appendix 6 to the same law for the expenses of work remuneration for the Kaunas Regional Court, as well as government resolution No. 1494 of 28 December 1999, with Articles 109 and 114 of the Constitution guaranteeing the independence of courts and judges.

The petition of the petitioner is based on the following arguments. Upon adoption of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets on 23 December 1999, in Appendix 6 thereof the approved amount designated for the expenses of work remuneration for the Kaunas Regional Court does not ensure the payment of judges’ salaries of the size paid until 1 January 2000. It was held in the Constitutional Court’s ruling of 6 December 1995 that any attempts to reduce the salary or other social guarantees of the judge or cut the budget of the judiciary are interpreted as infringement on the guarantees of a social (material) character of the principle of independence of judges and courts entrenched in Paragraph 2 of Article 109 of the Constitution. The same attitude of the Constitutional Court is also set forth in its ruling of 24 December 1999 and decision of 12 January 2000. Thus, it is possible that the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets and government resolution No. 1494 of 28 December 1999 on the reduction of judges’ salaries conflict with Articles 109 and 114 of the Constitution.

5. The petitioner—the First Vilnius City Local Court—was considering a civil case regarding the payment of official remuneration. By means of its ruling of 16 May 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Paragraph 1 of Article 1 of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets and government resolution No. 1494 of 28 December 1999 with Articles 109 and 114 of the Constitution.

The petition of the petitioner is based on the following arguments. Upon adoption of the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets on 23 December 1999, in Appendix 6 thereof the approved amount designated for the expenses of work remuneration for the Šiauliai Regional Court does not ensure the payment of judges’ salaries of the size paid until 1 January 2000. It was held in the Constitutional Court’s ruling of 6 December 1995 that any attempts to reduce the salary or other social guarantees of the judge or cut the budget of the judiciary are interpreted as infringement on the guarantees of the principle of independence of judges and courts entrenched in Paragraph 2 of Article 109 of the Constitution.

6. The petitioner—the First Vilnius City Local Court—was considering a civil case regarding official remuneration. By means of its ruling of 8 June 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of government resolution No. 1494 of 28 December 1999, to the extent that it is linked with the reduction of the official remuneration of chairpersons of courts and judges, with Articles 109 and 114 of the Constitution. The petition of the petitioner is based on the fact that any attempts to reduce salaries of judges are treated as infringement on the guarantees of the principle of independence of judges and courts enshrined in the Constitution.

7. The petitioner—the Higher Administrative Court—was considering a civil case regarding the payment of positional salaries. By means of its ruling of 7 June 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of government resolution No. 666 of 24 June 1997, government resolution No. 499 of 29 November 1991, and government resolution No. 1494 of 28 December 1999 with Paragraph 2 of Article 109 and Article 114. The petition of the petitioner is based on the fact that the said government resolutions violate the principle of independence of judges and courts, which is established in the Constitution and on the fact that institutions of state power and administration attempt to interfere with the activities of judges and courts, thus violating the Constitution.

8. The petitioner—the Higher Administrative Court—was considering an administrative case regarding the payment of difference in salaries. By means of its ruling of 3 October 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Articles 4 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, government resolution No. 1494 of 28 December 1999 with the principle of a state under the rule of law established in the Preamble to the Constitution, the principle of the separation of powers established in Article 5 of the Constitution, Article 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution.

The petition of the petitioner is based on the following arguments. The Constitution contains the prohibition for institutions of state power and administration against interfering with activities of judges or courts, as well as the provision that judges are not permitted to receive any remuneration other than the salary established for judges as well as payments for educational or creative activities. Article 5 of the Constitution establishes the principle of the separation of powers, while the Preamble to the Constitution establishes the principle of a state under the rule of law. The protection of salaries and other social guarantees for judges is one of the guarantees for the principle of the independence of judges and courts. Any attempts to reduce salaries or other social guarantees of judges while they are exercising judicial functions in a professional capacity are prohibited. By means of Articles 4 and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, as well as by means of Chapter II of the Appendix to the same law, the salaries of judges were reduced if compared with those which had been paid before. By means of Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, which was adopted on 23 December 1999, the funds allocated to the financing of courts, including salaries to judges, were such that salaries of judges decreased considerably. Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets reduced financing for certain courts even more if compared with Appendix 6; by government resolution No. 1494 of 28 December 1999 the formerly established increase of the coefficient of the official remuneration of judges was reduced from 2.5 till 1.75.

By means of the impugned legal acts, salaries of judges were reduced, therefore, the court has doubts if these legal acts are in compliance with the principle of a state under the rule of law established in the Preamble to Constitution, the principle of the separation of powers established in Article 5, as well as whether they do not violate the principle of independence of judges and courts which is enshrined in Paragraph 2 of Article 109 of the Constitution, and whether, by reducing judges’ salaries, institutions of state power and administration do not interfere with activities of judges and courts thereby violating Article 114 of the Constitution.

9. The petitioner—the Higher Administrative Court—was considering an administrative case regarding defence of infringed rights and payment of remuneration for work. By means of its ruling of 7 October 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into the compliance of Articles 4 and 7 of the 29 August 2000 Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the same law, Appendix 6 to the 23 December 1999 Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets enacted by the Seimas on 13 July 2000, government resolution No. 1494 of 28 December 1999, to the extent that it reduced salaries of judges, with the principle of a state under the rule of law established in the Constitution as well as Article 5, Article 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution.

The petition of the petitioner is based on the fact that the protection of salaries and other social guarantees of judges is one of the constitutional guarantees of the independence of judges and courts. In an effort to ensure the independence of judges and courts from the legislative and executive branches of power, any attempts to reduce salaries or other social guarantees of judges while they are exercising judicial functions in a professional capacity are prohibited.

10. The petitioner—the First Vilnius City Local Court—was considering a case regarding the payment of salaries. By means of its ruling of 21 December 2000, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of Article 7, Paragraph 5 of Article 7 of the 29 August 2000 Law on the Work Pay of State Politicians, Judges and State Officials, Chapter II of the Appendix to the same law as well as other provisions of the same law by which by one or another form the remuneration for work and other payments in fact received by judges exercising judicial functions in a professional capacity which had been paid to them from the budget of the state until 1 January 2000 were reduced with Articles 109 and 114 of the Constitution.

The petition of the petitioner is based on the fact that the arguments and conclusions of the Constitutional Court’s rulings of 6 December 1995 and of 21 December 1999, and its decision of 12 January 2000 provide one with the grounds to presume that Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3 of Article 7, Paragraph 5 of Article 7 of the 29 August 2000 Law on the Work Pay of State Politicians, Judges and State Officials, Chapter II of the Appendix to the same law as well as other provisions of the same law by which by one or another form the remuneration for work and other payments in fact received by judges exercising judicial functions in a professional capacity until 1 January 2000 were reduced are in conflict with Articles 109 and 114 of the Constitution.

11. The petitioner—the Vilnius Regional Administrative Court—was considering an administrative case regarding defence of infringed rights and payment of remuneration for work. By means of its ruling of 11 May 2001, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into the compliance of the 27 March 2001 Law Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials with the principle of a state under the rule of law entrenched in the Preamble to the Constitution, the principle of the separation of powers established in Article 5 of the Constitution, Article 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution.

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

By the norm of Article 1 of the impugned law the time period was changed during which the remuneration for work of judges is reduced, alongside, the coefficients of computation of remuneration for work for this period were also changed. By means of the norm of Article 2 of the impugned law, an earlier date was established as of which judges must be paid the remuneration for work determined by law, i.e. this law regulates the procedure of reduction of remuneration for work of judges. The Constitution provides that, in the Republic of Lithuania, the courts shall have the exclusive right to administer justice, and that, while administering justice, judges and courts shall be independent and obey only the law. The protection of salaries and other social guarantees of judges is one of the guarantees of the principle of independence of judges and courts, and, in an effort to ensure the independence of judges and courts from the legislative and executive branches of power, any attempts to reduce salaries or other social guarantees of judges while they are exercising judicial functions in a professional capacity are prohibited.

II

In the course of the preparation of the case for the court hearing, written explanations of 19 March 2001 and of 27 June 2001 were received from E. Rumbutis, a consultant of the Legal Department of the Office of the Seimas. The representative of the party concerned notes therein that the fact that the provisions of Article 5 of the Law on the Work Pay of State Politicians, Judges and State Officials provide that “judges <…> shall be paid extra pays for the years served for the State of Lithuania from 11 March 1990” and the fact that “the extra 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 extra pay may not exceed 30 percent of the positional salary” in themselves do not mean that thereby judges’ salary is reduced, as the salary is comprised not only of the extra pay for the years served for the State of Lithuania. This conclusion may be grounded on Paragraph 2 of Article 3 of the said law by which the remuneration for work of judges is comprised of the positional salary, the extra pay for the years served for the State of Lithuania and one-off extra pay.

Under Item 1 of Paragraph 3 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, state politicians, judges and state officials whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months and of the established additional and extra pay of the preceding twelve months is bigger than the remuneration for work provided for in this law shall, upon this law going into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000. Chapter II of the Appendix to the said law establishes the coefficients of judges’ positional salaries, however, it is impossible to assert on their basis that the judges’ salaries pointed out in the appendix will decrease in the course of the application of the is law. Under Paragraph 2 of Article 3 of the said law, the remuneration for work of judges shall consist of the positional salary, extra pay for the years served for the State of Lithuania, and one-off extra pay.

Paragraph 2 of Article 109 of the Constitution provides that, while administering justice, judges and courts shall be independent. The independence of courts is based on the principle of the separation of powers.

In the opinion of the representative of the party concerned, the independence of judges established in Paragraph 2 of Article 109 of the Constitution does not have a direct connection with judges’ salaries, additional and extra pay as judges receive salaries, additional and extra pay for their work but not for the consideration of particular cases. The independence of judges and courts is also conditioned by the right of a person to have an impartial arbiter of the dispute. Of course, their right means that in a state under the rule of law everyone is given an opportunity to defend his rights in court against unlawful actions of other persons as well as state institutions and officials. It is of crucial importance to guarantee this when there is a conflict concerning the inborn rights and freedoms. However, Paragraph 3 of Article 109 of the Constitution provides that, while considering cases, judges shall obey only the law, therefore, even if there should be so that judges’ salaries, in connection with a complicated situation of the Lithuanian economy, were decreased, this should not and may not exert any influence on administration of justice. Paragraph 1 of Article 48 of the Constitution provides that every person must have adequate compensation for work. This constitutional provision pre-supposes that fact that an individual must receive adequate remuneration for work which would guarantee the individual and the members of his family an adequate subsistence level. This constitutional provision pre-supposes that in the state no one may receive an disproportionately big salary if compared with the majority of working people.

The Constitution provides that institutions of state power and administration, members of the Seimas and other officers, political parties, political or public organizations, and citizens shall be prohibited from interfering with the activities of a judge or the court, and violation of this shall incur liability provided by law. However, even though the Seimas is empowered to enact laws, it did not establish salaries for particular judges in the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, therefore, this should not be regarded as an attempt to influence judges in an effort to hinder them to consider the case fairly. The salaries of judges and the extra (additional) pay are established on the basis of the criteria entrenched in the laws and according to the size of finances designated for remuneration for work.

Alongside, one must pay attention to the fact that, by means of the Republic of Lithuania’s Law on the Approval of the Indicators of the 2000 State Social Insurance Fund Budget, the tariff for state social insurance payments for those insured against by law was increased from 1 to 3 percent, which also influenced the actual size of the extra pay supplementing official remuneration.

While assessing the requirements and reasoning regarding the reduction of the salaries, one is also to note that, by means of the Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania”, the Seimas commissioned the Government to establish the remuneration for judges until the specification of respective laws. Implementing this law, on 3 March 1993 the Government adopted the Resolution (No. 124) “On the Remuneration for Work of the Employees of Courts, State Arbitration, Prosecutor’s Office and National Audit Department of the Republic of Lithuania” by which it established salaries of judges. By means of its resolution No. 74 of 3 February 1994, the Government increased these salaries by 60 percent.

The Republic of Lithuania’s Law on Courts enacted on 31 May 1994 went into effect on 18 June 1994. On that day the law of 3 February 1993 by which the Government had been commissioned to establish salaries of judges became null and void. Regardless of this, the Government by means of its resolution No. 666 of 24 June 1997 established higher salaries of judges, by means of its resolution No. 689 of 30 June 1997 increased salaries of judges, while by means of its resolution No. 1494 of 28 December 1999 reduced them. Thus, the Government was exercising the functions which were not assigned to it, while its decisions were not in line with the provisions of Article 55 of the Law on Courts.

On 29 August 2000 the Seimas enacted the Law on the Work Pay of State Politicians, Judges and State Officials by which salaries of judges were established. Thus, the provisions of Article 55 of the Law on Courts were consolidated. In the opinion of the representative of the party concerned, one ought to compare the salaries of judges established by Government Resolutions Nos. 124 and 74 of 3 March 1993 and by the Law on the Work Pay of State Politicians, Judges and State Officials. According to the representative of the party concerned, the impugned provisions of the Law on the Work Pay of State Politicians, Judges and State Officials are in compliance with the Constitution.

III

1. At the Constitutional Court hearing E. Rumbutis, the representative of the Seimas, virtually reiterated the arguments set forth in his written explanations.

2. At the Constitutional Court hearing, A. Baležentis, the representative of the Government, the chief specialist of the Private Law Division of the Law Department of the Ministry of Justice, explained that, by means of the Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania” of 3 February 1993, the Seimas commissioned an institution of the executive to temporarily regulate the relations occurring due to the official remuneration of judges of courts of the Republic of Lithuania. Until the adoption of a law regulating remuneration for work of judges, the commissioning for the Government by the legislature to establish the official remuneration of judges was valid and the Government had to enforce it. The Government, by means of its Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997, increased 2.5 times as much the official remuneration (its coefficients) of judges of the Republic of Lithuania established by means of resolutions of the Government without exceeding the limit of the finances designated for remuneration for work. After the financial situation of this country had become worse, in its Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” of 28 December 1999 the Government established that as of 1 January 2000 the official remuneration shall be increased 1.75 but not 2.5 times as much, without exceeding the finances designated for work remuneration.

In the opinion of A. Baležentis, on the basis of the size of the finances designated for the work remuneration of judges, the official remuneration of judges is established. Therefore, the conclusion should be drawn that, in 1993–2000, the competence of the Government in the establishment of certain sizes of salaries for judges was conditioned by the size of means allocated for the finances designated for remuneration for work of judges approved in the laws on the approval of the financial indicators of the state budget and the municipal budgets for respective years approved by the Seimas. The Government must accomplish respective actions under the competence granted to it and to restrain from actions which are not allowed by legal norms (the Constitutional Court’s ruling of 17 June 1997). The Government, implementing the commissioning by the Seimas, by means of its resolution No. 1494 of 28 December 1999 established the size of judges’ salaries, by taking account of the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets.

3. The representative of the party concerned—the Government—V. Žagūnienė, Head of the Division for the Security Programmes of the State and Society of the Budget Department of the Ministry of Finance, explained at the Constitutional Court hearing that in 1999, when this country found itself in a difficult economic situation, the Government had to take certain decisions so that the 2000 state budget and the budget of the State Social Insurance Fund would be implemented. One of the decisions was reduction of judges’ salaries.

The representative of the party concerned—the Government—V. Jakubonienė, Deputy Director of the Legal Department of the Ministry of Finance explained at the Constitutional Court hearing that in the Constitution the principle of the separation of powers is entrenched, however, this principle is not an absolute one. By means of the Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania” of 3 February 1993, the Seimas established that until the specification of respective laws, the official remuneration of judges of courts of the Republic of Lithuania shall be established by the Government. Thus, the conclusion should be drawn that the Government was executing the commissioning of the Seimas. In 1999, the economic-financial situation was very difficult and this conditioned the changes in the establishment of judges’ salaries.

The Constitutional Court

holds that:

I

1. The petitioners—the Higher Administrative Court by its rulings of 7 April 2000, 7 June 2000, 3 October 2000, 7 November 2000, the Vilnius Regional Administrative Court by its ruling of 11 May 2001, the First Vilnius City Local Court by its ruling of 11 April 2000, three rulings of 16 May 2000, as well as the rulings of 8 June 2000 and 21 December 2000, request an investigation into the compliance of government resolution No. 499 of 29 November 1991, government resolution No. 666 of 24 June 1997, government resolution No. 1494 of 28 December 1999, as well as Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the provisions of Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, and Articles 4, 5, and 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, as well as the provisions of Chapter II “Positional Salaries of Judges” of the Appendix to the same law by which salaries of judges are established, with the Constitution.

2.1. On 29 November 1991, the Government adopted the Resolution (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” wherein it established the temporary experimental procedure for remuneration for work to heads and other officials of state authority, who exercised the functions of state administration and law enforcement.

2.2. On 24 June 1997, the Government adopted the Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” wherein the remuneration of judges was confirmed, as well as the additional pay supplementing the official remuneration of judges for the time of service and additional conditions for the work pay applicable to judges were established.

2.3. On 28 December 1999, the Government adopted the Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” by which it was decided to partially amend the Government Resolution (No. 689) “On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions” of 30 June 1997.

2.4. In Appendix 6 entitled “Distribution of the Expenses to Law Institutions for Program 1.1 ‘Implementation of the Outline of the Reform of the Legal System’”, which was approved by Paragraph 1 of Article 1 of the 23 December 1999 Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the funds designated for the financing of courts were provided for.

2.5. By means of Article 9 of the 13 July 2000 Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, in Appendix 6 “Expenses for Law Institutions” of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, the indicators of the funds designated for financing respective courts were amended.

2.6. The Law, which was enacted on 29 August 2000, established the sizes of judges’ salaries and conditions of their payments, as well as the reduction of salaries of the judges whose salary is bigger than provided in this law, by applying, during the transitional period, a respective formula provided for in the law. Certain provisions of this law were amended by the 17 October 2000 Law Amending the Law on the Work Pay of State Politicians, Judges and State Officials and the 27 March 2001 Law Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials.

II

1. On 3 February 1993, the Seimas enacted the Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania” wherein it was established that until respective laws are specified, salaries of judges shall be established by means of government resolutions. The provision of this law that until respective laws are specified, salaries of judges shall be established by means of government resolutions meant a temporary commissioning for the Government to regulate the said relations.

On 29 August 2000, the Seimas enacted the Law on the Work Pay of State Politicians, Judges and State Officials by which salaries of judges were established. This means that after this law had gone into effect, the commissioning for the Government to establish salaries of judges, which had been provided for by the aforementioned 3 February 1993 Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania”, became null and void. Taking account of the fact that the Law regulates the relations of judges’ salaries differently from the government resolutions, the legal regulation established in the Government Resolution (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” of 29 November 1991, the Government Resolution (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997 and the Government Resolution (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” of 28 December 1999 is no longer in force. Taking account of this, it should be held that there are the grounds to dismiss the instituted legal proceedings in this part of the case. In this part of the case the instituted legal proceedings shall be dismissed.

2. In Appendix 6 to the 23 December 1999 Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets, “Distribution of the Expenses to Law Institutions for Program 1.1 ‘Implementation of the Outline of the Reform of the Legal System’” was established. By means of Article 9 of the 13 July 2000 Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets amendments were made in Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets.

The petitioners—the First Vilnius City Local Court by its two rulings of 16 May 2000 and the Higher Administrative Court by its ruling of 7 November 2000 request an investigation into the compliance of Paragraph 1 of Article 1 (on reduction of salaries and other social guarantees of judges) of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets with the Constitution to the extent that Appendix 6 to the law provides for the funds for the expenses on the work remuneration of the courts pointed out in the petitions with the Constitution, and into the compliance of Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets by which amendments were made to Appendix 6 to the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets which provided the funds for the financing of remuneration for work of particular courts, with the Constitution.

The legal relations regulated by the 23 December 1999 Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets and the 13 July 2000 Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets ended on 31 December 2000. At present the budgetary relations are regulated by other law.

Taking account of the fact that the impugned legal regulation is no longer in force, it should be held that there are grounds to dismiss the instituted legal proceedings in this part of the case. In this part of the case the instituted legal proceedings shall be dismissed.

3. Under the Constitution, the Constitutional Court must secure the supremacy of the Constitution in the legal system. The Constitutional Court administers constitutional justice while considering whether the laws and other legal acts adopted by the Seimas, legal acts adopted by the President of the Republic and the Government of the Republic are in conformity with the Constitution. It needs to be noted that the Constitution does not provide that the Constitutional Court is permitted not to consider certain laws and other legal acts. The Constitutional Court must consider the compliance with the Constitution of all the legal acts pointed out in Paragraph 1 of Article 102 of the Constitution, thus including those by which salaries of judges of the Republic of Lithuania are established.

It needs to be noted that the Constitutional Court has decided questions of the compliance with the Constitution of the legal regulation of activities of judges and courts and relations of salaries of judges (the Constitutional Court’s rulings of 6 December 1995, 18 April 1996, 19 December 1996, 5 February 1999, 21 December 1999, and its decision of 12 January 2000). In these as well as other rulings of the Constitutional Court the constitutional doctrine of the independence of judges and courts as well as the protection guarantees ensuring this independence was formulated.

4. The Constitutional Court notes that it does not establish and that it may not establish as to what particular size of salaries of judges of the Republic of Lithuania there must be. The Constitutional Court, after it has received the petitions of the petitioners, must consider the compliance of the legal acts establishing salaries of judges with the Constitution.

In the case at issue the Constitutional Court will consider whether the impugned provisions of the Law on the Work Pay of State Politicians, Judges and State Officials to the extent that they establish salaries of judges are in compliance with the principles and norms of the Constitution.

III

1. As it has been mentioned, the petitioners doubt whether the impugned norms of the Law are in compliance with the principle of a state under the rule of law which is entrenched in the Constitution, the principle of the separation of powers established in Article 5 of the Constitution, Article 109 of the Constitution, as well as the provisions of Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution.

In the impugned provisions of the Law salaries of judges are established. Under Paragraph 2 of Article 3 of the Law, the remuneration of judges shall be comprised of the positional salary, the extra pay for the years served for the State of Lithuania and one-off extra pay. It is possible to assess the compliance of these provisions with the Constitution only after one has taken account of the specific character of the judiciary, the status of judges and guarantees of its ensuring which are established in the Constitution.

It needs to be noted that under Paragraph 1 of Article 113 of the Constitution, the salaries received by judges are referred to by the notion “salaries of judges”. In the impugned provisions of the Law, by comparing judges with state politicians and other state officials, a different notion is employed—“remuneration for work of judges”. Such an imprecise use of the notion in the Law may be treated as one of the preconditions for denying the specific character and protection of salaries of judges enshrined in the Constitution. The legislature is obligated in the law to refer to the remuneration received by judges by employing the notion “salaries of judges” pointed out in the Constitution.

2. The Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution), therefore, the principles and norms of the Constitution pointed out in the petitions of the petitioners will be interpreted by linking them with other principles and norms of the Constitution.

3. Article 5 of the Constitution provides that, in Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. In this and other articles of the Constitution the principle of the separation of powers is enshrined. The judiciary is the only branch of state power that assigned to administer justice. No other state institution or official may exercise this function. Only an independent and fully-fledged judiciary may successfully implement this function assigned to it.

The independence and full-fledgedness of the judiciary are inseparable from the principle of the independence of judges and courts entrenched in the Constitution.

4.1. Article 109 of the Constitution provides:

In the Republic of Lithuania, the courts shall have the exclusive right to administer justice.

While administering justice, judges and courts shall be independent.

While considering cases, judges shall obey only the law.”

4.2. Paragraph 1 of Article 109 of the Constitution provides that, in the Republic of Lithuania, the courts shall have the exclusive right to administer justice. The function of administration of justice determines the independence of judges and courts. Paragraphs 2 and 3 of Article 109 of the Constitution provide that, while administering justice, judges and courts shall be independent and that, while considering cases, judges shall obey only the law. Thus, the judge can administer justice only in case he is independent from the parties to the case, state institutions, officials, political and public associations, natural and legal persons.

While analysing the principle of independence of judges and courts, one must note that the independence is not a privilege but one of the most important obligations of judges and courts, which stems from the right of a person guaranteed in the Constitution to an independent and impartial arbiter of the dispute. All state institutions must respect and ensure this right of the person guaranteed by the Constitution. This circumstance must be taken into account, while the guarantees of independence of judges and courts are being assessed.

The independence of the judge is ensured by establishing the inviolability of the term of office of the judge, inviolability of the person of the judge, guarantees of a social (material) character of the judge, by consolidating self-governance of the fully-fledged judiciary and its financial and technical provision (the Constitutional Court’s rulings of 6 December 1995, 18 April 1996, 19 December 1996, 5 February 1999, 21 December 1999, and 21 December 1999, and its decision of 12 January 2000).

4.3. It needs to be noted that the principle of independence of judges and courts is consolidated in the constitutions of democratic countries and international documents. For example, by its Resolution of 13 December 1985, the General Assembly of the United Nations endorsed the Basic Principles on the Independence of the Judiciary. Replying to the said document, on 13 October 1994 the Committee of Ministers of the Council of Europe adopted the Recommendation on the Independence, Efficiency and Role of Judges designated to Member States of the Council of Europe. It is provided in Item 1.1 of the European Charter on the Statute for Judges, which was, upon the initiative of the Council of Europe, approved on 10 July 1998, that its provisions aim at raising the level of guarantees of competence, independence and impartiality of judges in the various European States, and that the provisions of the Charter cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned.

4.4. The principle of the independence of judges and courts established in the Constitution means that the legislature has the duty to provide for such a whole of guarantees ensuring the independence of judges and courts which would ensure impartiality of courts in adopting decisions, and which would not permit anyone to interfere with activities of judges and courts while they are administering justice.

A specific function of courts and the principle of independence of judges and courts established in the Constitution also determine the legal status of the judge. It needs to be noted that the judiciary is formed on a professional but not political basis. “According to the duties performed, judges may not deemed to be state servants. No one may demand that they follow a certain political guideline. The case-law judicial practice is formed only by courts, while applying the norms of law. The judge ensures human rights and freedoms in that he administers justice on the grounds of the Constitution and laws” (the Constitutional Court’s ruling of 21 December 1999).

In its rulings of 6 December 1995 and 21 December 1999, the Constitutional Court held that “according to the detailed interpretation of the independence of judges and the court established in Paragraph 2 of Article 109 of the Constitution and set forth in the Law on Courts and other laws of Lithuania, the following three groups of safeguards may be conditionally identified among the safeguards guaranteeing the independence of judges: a) those guaranteeing the security of tenure, b) guaranteeing personal immunity of a judge, and c) those securing social (material) guarantees of judges”. These guarantees are tightly linked with each other, therefore, it is universally recognised that in case any guarantee of independence of judges and courts is violated, administration of justice might be impaired, and there might appear a danger that other human rights and freedoms will not be ensured, either.

4.5. The petitions of the petitioners concerning the compliance of the aforementioned legal acts with the Constitution are linked with the guarantees of a social (material) character of judges. In the context of the case at issue it needs to be noted that in democratic states it is recognised 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. The state has the duty to establish such salaries for judges which would be in conformity with the status of the judiciary and judges, with the functions exercised by them and their responsibility. The protection of judges’ salaries is one of the guarantees of independence of judges. Item 6.1 of the European Charter on the Statute for Judges provides that judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.

The constitutional imperative of the protection of judges’ salaries and other social guarantees arises out of the principle of independence of judges and courts established in Article 109 of the Constitution. By this principle one attempts to protect the judges administering justice from any influence of the legislature and the executive, as well as from that of other state establishments and officials, political and public organisations, commercial economic structures, and legal and natural persons. It needs to be noted that the independence of judges is secured also from another aspect: the prohibition is established in a commanding way in Paragraph 1 of Article 113 of the Constitution for judges to receive, during their professional career, any remuneration other than the salary established for judges as well as payments for educational or creative activities.

The Constitutional Court has emphasised the requirement to ensure the independence of judges arising out of Article 109 of the Constitution in a number of cases. Interpreting the constitutional principle of independence of judges and courts, in its rulings of 6 December 1995, 21 December 1999 and decision of 12 January 2000, the Constitutional Court held that the protection of judges’ salaries and other social guarantees is one of the guarantees to ensure this principle. Thus, under the Constitution, in an attempt to ensure the independence of judges, any reduction of the salary of the judge during his continuance in office, and any reduction of the established social guarantees are prohibited.

The provisions of the Constitution and the constitutional doctrine set forth in the rulings of the Constitutional Court are in line with the provisions of the constitutions and constitutional doctrines of democratic countries. It needs to be noted that the principle that the salary of the judge during his continuance in office may not be diminished was entrenched as far back as in the 1787 USA Constitution (Section 1 of Article III). Later on it was taken over by constitutional law of other democratic countries. In some countries it is directly stated in the texts of basic laws, while in others it is considered an integral element of the principle of independence of judges and courts established in the Constitution. In the constitutional doctrine various aspects of the element of the principle of independence of judges and courts have been disclosed. For instance, in its decision of 15 September 1999, the Constitutional Court of the Czech Republic emphasised the inalienable right of the judge to undiminished salary and the prohibition against the categorisation of judges as public servants. In its decision of 17 September 1997, the Supreme Court of Canada noted that it is impermissible to diminish salaries of judges in an attempt to evade the budget deficit. In the decision of 4 October 2000 of the Constitutional Tribunal in Poland it is held that the salaries of judges must be especially protected against unfavourable fluctuations in case of difficulties in the area of state budget, etc.

4.6. In case the imperative of independence of judges and courts is violated, conditions are created to subjugate the judiciary to political situations. It needs to be noted that manipulations with the size of judges’ salaries and with the extent of their social guarantees are characteristic of the practice of undemocratic states. In democratic states under the rule of law the legal regulation violating the principle of judges and courts entrenched in the Constitution of that country is impermissible.

5.1. The constitutional principle of a state under the rule of law is a universal one upon which the whole Lithuanian legal system as well as the Constitution of the Republic of Lithuania itself are based. The content of the principle of a state under the rule of law can be detected in various provisions of the Constitution and should be construed inseparably from the striving for an open, just, and harmonious civil society and state under the rule of law as stated in the Preamble to the Constitution. Along with the other requirements, the principle of the state under the rule of law enshrined in the Constitution also pre-supposes the fact that human rights and freedoms must be ensured, that all state institutions exercising state authority, as well as other state institutions, must act on the grounds of law and in compliance with law, that the Constitution has the supreme juridical power and that the laws, government resolutions, and other legal acts must be in conformity with the Constitution (the Constitutional Court’s ruling of 23 February 2000).

While preparing and adopting legal acts, institutions of state authority must follow the principle of a state under the rule of law entrenched in the Constitution. Paragraph 2 of Article 5 of the Constitution provides that the scope of powers shall be defined by the Constitution. This means that the Seimas, as the legislator of laws and other legal acts, is independent as much as its powers are not limited by the Constitution. The right of the Seimas to adopt, amend, supplement laws and other legal acts or recognise them as null and void is indisputable, however, it may implement this by following the procedure established in the Constitution and the principles of coordination of legal acts. Thus, the Seimas, regulating respective relations by law, may not violate the principles and norms of the Constitution.

5.2. One of essential elements of the principle of a state under the rule of law established in the Constitution is the principle of legal security. This means the duty of the state to ensure the certainty and stability of legal regulation, to protect the rights of entities of legal relations, including the acquired rights, and to respect legitimate interests and legitimate expectations. The purpose of this principle is to guarantee the faith of persons in their state and law.

While this principle is being analysed, two aspects must be underlined. First, the imperative of legal security presupposes certain obligatory requirements for legal regulation itself. It must be clear and harmonious, legal norms must be formulated precisely. Legal acts of lower level may not conflict with legal acts of higher level, and no legal act may conflict with the Constitution. Legal normative acts must be published under established procedure and all entities of legal relations must have an opportunity to familiarise themselves with them. Second, this principle also includes several requirements linked with validity of legal regulation. Under this principle, legal regulation may be amended only in pursuance with an earlier established procedure and without violating the principles and norms of the Constitution. It is also necessary, inter alia, to follow the principle lex retro non agit, it is impermissible to deny legitimate interests and legitimate expectations of persons, the continuance of jurisprudence must be guaranteed.

The principle of legal security must be followed by all institutions of state authority, and the Seimas first of all, which, under Item 2 of Article 67 of the Constitution, enacts laws. It is of crucial importance that the legislature, while regulating the implementation of the rights and freedoms of persons entrenched in the Constitution, should follow this principle so that the legal situation of persons would not be deteriorated without reason, that neither the acquired rights nor legitimate interests nor legitimate expectations would be denied.

The principle of legal security also pre-supposes that in cases when due to actions of institutions of state authority the rights of persons are infringed, the persons must be guaranteed an effective judicial defence of these rights. One of necessary conditions of such defence is independence and impartiality of judges and courts. Thus, the guarantees of independence and impartiality of judges and courts are important also in view of the ensuring of legal security of every member of society.

One more aspect of ensuring legal certainty should be noted. The judge may not be regarded as a person exercising the function of justice only. A judge is a member of society. As every person, he has the right to defend his rights, legitimate interests and legitimate expectations. It is universally recognised that the purpose of the principle of legal security is to ensure the faith of a person in his state and law. The fact is of no less importance that judges themselves, who administer justice, should trust their state and law.

6. Paragraph 1 of Article 113 of the Constitution provides: “Judges may not hold any other elective or appointive posts, and may not be employed in any business, commercial, or other private establishment or company. They are also not permitted to receive any remuneration other than the salary established for judges as well as payments for educational or creative activities.”

Paragraph 1 of Article 113 of the Constitution establishes the incompatibility of the post of the judge with any other elective or appointive posts, employment in any business, commercial, or private establishment or company. The judge may receive only the salary of the judge paid from the state budget. He is not permitted to receive any other remuneration except payments for educational or creative activities.

The incompatibility of the post of the judge with other posts or employment is determined by a special legal situation of the judge, as well as the Judiciary, as a branch of state powers. By means of the established prohibition, one attempts to ensure the independence and impartiality of judges, which are necessary conditions for the implementation of justice. Alongside, it needs to be noted that incompatibility of the post of the judge with any other posts or employment pre-supposes the duty of the state to establish respective salary and social guarantees which would be in line with the dignity of the judge and his professional status.

7. Paragraph 1 of Article 114 of the Constitution provides: “Institutions of State power and administration, members of the Seimas and other officers, political parties, political or public organisations, and citizens shall be prohibited from interfering with the activities of a judge or the court, and violation of this shall incur liability provided by law.”

By means of the prohibition against the interference with the activities of a judge or the court established in Paragraph 1 of Article 114 of the Constitution one attempts to ensure the independence and impartiality of judges. The court is able to administer justice only when the judge can consider a case impartially, by taking account of the circumstances of the case and the requirements of the law. It needs to be noted that, under the Constitution, institutions of state power and administration are not only prohibited form exerting influence on judges and courts—they are also obligated to ensure the independence of judges and courts.

8. As mentioned before, the principles and norms of the Constitution comprise a harmonious system, therefore, it is impossible to construe certain principles and norms of the Constitution by denying the essence of the other principles and norms. If one or another principle enshrined in the Constitution was denied, the balance of constitutional principles and values would be disturbed and the essence of constitutional regulation would be distorted.

The principles and norms of the Constitution have a clearly defined meaning and content which is disclosed in the constitutional jurisprudence. It is impossible to construe constitutional norms and principles on the basis of the legal acts adopted by the legislature and other entities of law-making, as then the supremacy of the Constitution in the legal system would be denied. On the contrary, in every case the Seimas, as well as other state institutions, is directly bound by the Constitution.

Neither the principle of a state under the rule of law, nor the separation of powers, nor independence of judges or courts is a thing in itself. Their meaning is disclosed by the protection of human rights, the ensuring of social concord and solution by law of conflicts arising in society. The judge considers cases wherein the interests clash between the employee and the employer, the citizen and the official, the entity indulged in commercial activities and the consumer, the person and the state. It is especially important to guarantee an impartial judicial protection against unlawful actions of state institutions and officials. This once again confirms the importance of guarantees of independence of judges and courts.

9. Alongside, the Constitutional Court notes that the system of guarantees of independence of judges and courts does not create any pre-conditions, which the judge might use as a cover so that he might evade proper fulfilment of his duties, consider cases in a negligent manner, treat the persons participating in the case in an unethical manner, or violate human rights and dignity. Judges must preserve the honour and prestige of their profession. Therefore, the system of self-regulation and self-governance of the judiciary must guarantee that judges fulfil their duties accurately, that every unlawful or unethical actions of a judge be properly assessed.

IV

On the compliance of Paragraphs 1 and 2 of Article 4, Paragraphs 1 and 3 of Article 5, Item 1 of Paragraph 3, Paragraphs 4, 5 and 6 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials, as well as Chapter II of the Appendix to the Law with Articles 5 and 109, Paragraph 1 of Article 113, Paragraph 1 of Article 114 of the Constitution as well as the principle of a state under the rule of law enshrined in the Constitution.

1. Article 4 of the Law on the Work Pay of State Politicians, Judges and State Officials provides:

1. The positional salaries of state politicians, judges and state officials shall be computed by applying coefficients of the size of the minimal monthly salary (MMS) approved by the Government.

2. The positional salary shall be computed by multiplying a respective positional salary coefficient established in the Appendix to this Law by the MMS approved by the Government. The positional salary shall be rounded following the common rules of numbers’ rounding so that the last figure would be either 0 or 5.

3. The salary which was not received by municipal council members as politicians in their main place of employment because of the time spent by them in meetings of either the council or its sub-divisions, as well as that spent in connection with the duties of a member of the municipal council shall be paid to them on the grounds established by the Law on Local Self-Government.”

1.1. Paragraph 1 of Article 5 of the Law provides:

1. State politicians, judges and state officials shall be paid extra pay for the years served for the State of Lithuania from 11 March 1990 in the institutions of the State and municipalities and establishments in the posts of public servants of public administration and public servants of ‘A’ and ‘B’ levels, as well as in the posts pointed out in Items 1–6 of Paragraph 3 of Article 4 of the Law on Public Service.”

Paragraph 3 of Article 5 of the Law provides:

3. The extra pay for the years served for the State shall be comprised of 3 percent of the positional salary of the state politician, judge or state official for every three years, however, the size of the extra pay may not exceed 30 percent of the positional salary.”

1.2. Article 7 of the Law provides:

1. The size and conditions of the payment of remuneration for work of the President of the Republic, as provided by this Law, shall be applicable for a newly elected or re-elected President of the Republic.

2. The size and conditions of the payment of remuneration for work of the Speaker of the Seimas, Seimas officials and Seimas members shall be applicable as of the day of the first sitting of the newly elected Seimas.

3. State politicians, judges and state officials,

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

A = C (1 - M).

Here:

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

C means the former remuneration for work;

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

Years

2001

2002

Half-years

I

II

I

II

M

0.2

0.4

0.65

0.9

 

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

A = [(B - C) x D] +C.

Here:

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

B means the remuneration for work established in this Law;

C means the former remuneration for work;

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

Years

2000

2001

2002

2003

2004

2005

D

0

0.1

0.3

0.5

0.7

0.9

4. During the transitional period, the remuneration for work for persons either elected or appointed to the post of a state politician, judge or state official shall be established and computed under the provisions of this Article and aforesaid formulas wherein C means the size of the remuneration for work of persons either elected or appointed to the post of a state politician, judge or state official which was computed under the conditions of remuneration for work that had been in force until this Law went into effect.

5. As of 1 January 2006, state politicians, judges, state officials must be paid the remuneration for work established in this Law.

6. While the remuneration for work is computed for state politicians, judges and state officials during the transitional period, the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Law on Public Service shall be applicable.”

1.3. Chapter II of the Appendix to the Law provides:

II. POSITIONAL SALARIES OF JUDGES

(MMS sizes)

Seq.

No.

Title of establishment

Positional salary coefficient

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

of deputy chairman

of division chairperson

of judge

1.

Constitutional Court of the Republic of Lithuania

17

15.5

2.

Supreme Court of Lithuania

17

15.5

14.5

3.

Court of Appeal of Lithuania

15

13.5

13

4.

Higher Administrative Court

13

11

5.

Regional courts

12

11

10.5

6.

Regional administrative courts

11

10.5

7.

Local courts:

 

 

 

 

7.1

in which 15 or more judges are employed

10

9.5

8.5

7.2

in which 14 or less judges are employed

9.5

9

8.5”

 

1.4. By means of Article 3 of the 17 October 2000 Law Amending the Law on the Work Pay of State Politicians, Judges and State Officials, Item 1 was amended and set forth as follows:

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

A = C - [(C - B) x M].

Here:

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

C means the former remuneration for work;

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

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

Years

2001

2002

Half-years

I

II

I

II

M

0.2

0.4

0.65

0.9”

 

1.5. By means of Article 1 of the 27 March 2001 Law Amending Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials Item 1 of Paragraph 3 of Article 7 was amended once again and set forth as follows:

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

A = C - [(C - B) x M].

Here:

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

C means the former remuneration for work;

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

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

Years

2001

2002

2003

Half-years

I

II

I

II

I

M

0

0.4

0.6

0.8

0.9”

 

Alongside, Paragraph 5 of Article 7 of the Law was also emended which was set forth as follows:

5. After the transitional period is over, state politicians, judges and state officials must be paid the remuneration for work established in this Law.”

2. The petitioners—the Higher Administrative Court by its rulings of 3 October 2000, 7 November 2000, the Vilnius Regional Administrative Court by its ruling of 11 May 2001 and the First Vilnius City Local Court by its ruling of 21 December 2000, request an investigation into the compliance of the aforesaid provisions of the Law establishing that the salary of the judges exercising judicial functions in a professional capacity, whose salary is bigger than established in this Law, shall be reduced with Articles 5 and 109, Paragraph 1 of Article 113 and Paragraph 1 of Article 114 of the Constitution.

3. Taking account of the reasoning set down in the petitions of the petitioners, the Constitutional Court will consider whether the following is in compliance with the Constitution:

1) Paragraphs 1 and 2 of Article 4 of the Law to the extent that they establish the manner of computing of judges’ positional salaries;

2) Paragraphs 1 and 2 of Article 5 of the Law to the extent that they establish extra pays for judges for years served for the State of Lithuania;

3) Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 4, Paragraph 5 (wordings of 29 August 2000 and 27 March 2001), and Paragraph 6 of the Law to the extent that they establish remuneration of judges during the transitional period and after the transitional period is over;

4) Chapter II of the Appendix to the Law entitled “Positional Salaries of Judges”.

4. In the course of the consideration of the impugned norms of the Law, it needs to be noted that they establish the size of remuneration for work as well as conditions of its payment to state politicians, judges and state officials to whom the Law on Public Service is not applied. Paragraphs 1 and 2 of Article 4 of the Law stipulate that the positional salaries of judges are computed by applying coefficients of the size of the minimal monthly salary (hereinafter also referred to as the MMS) approved by the Government. The positional salary is computed by multiplying a respective coefficient by the minimal monthly salary approved by the Government. Under the impugned norms of Article 7 of the Law, the judges whose former remuneration for work is bigger than the remuneration for work established in the said law shall, upon the said law going into effect, be paid the remuneration for work that they would have been paid until then and it shall not be increased in 2000, while during the established transitional period (from 1 January 2001 till 1 January 2003) the former remuneration for work shall be reduced by means of a respective formula until it becomes equal with the remuneration for work established in this Law. In Chapter II of the Appendix to the Law the coefficients of positional salaries of judges are established.

5. Under the 3 February 1993 Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania”, until respective laws are specified, salaries of judges had to be established by means of government resolutions.

In its ruling of 6 December 1995, analysing such legal regulation, the Constitutional Court held: “As long as the law on the remuneration of judges has not been not enacted yet, the Government remains responsible for the task assigned to it by the Seimas, and in the Law on the Budget approved annually by the Seimas reasonable limits for fulfilment of this task are set out.”

On 29 August 2000, the Seimas adopted the Law on the Work Pay of State Politicians, Judges and State Officials by which salaries of judges were established. By means of the 19 April 2001 Republic of Lithuania’s Law “On Recognising the Republic of Lithuania’s Law ‘On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania’ as Null and Void”, the aforementioned Law “On the Official Remuneration of Judges of Courts, Employees of the Prosecutor’s Office, State Arbiters and Employees of the National Audit Department of the Republic of Lithuania” was recognised as null and void.

6. On 29 August 2000, upon enactment of the Law on the Work Pay of State Politicians, Judges and State Officials, salaries of judges were established by law. While assessing the compliance of the impugned provisions of the Law with the Constitution, one must ascertain whether the legislature, while enacting the law, was following the requirements of principles and norms entrenched in the Constitution, guaranteeing the independence of judges and courts.

The Constitutional Court notes that the independence of judges and courts and the protection of its guarantees arise out of the Constitution but not out of the law. The validity and direct application of the norms of the Constitution may not be bound by any conditions save the conditions established in the Constitution itself. Under Paragraph 2 of Article 5 of the Constitution, the scope of powers shall be defined by the Constitution. By establishing salaries of judges by law, the Seimas must take into consideration the constitutional status of the judiciary and judges and may not deny the guarantees of the independence of judges and courts, including the size of salaries of judges received until then, which existed prior to the enactment of the said law.

7. In the opinion of the petitioners, the impugned provisions of the Law conflict with Article 109 of the Constitution, as well as the principle of a state under the rule of law entrenched in the Constitution.

Paragraph 1 of Article 4 of the Law provides that the positional salaries of judges shall be computed by applying coefficients of the size of the minimal monthly salary, which are approved by the Government. Thus, by such regulation a manner of computation of positional salaries of judges is established. In itself this rule determines neither the size of judges’ salaries nor conditions of their payment, therefore, it is impossible to assert that by this legal regulation the principle of the independence of judges and courts and that of a state under the rule of law are violated.

Paragraph 2 of Article 4 of the Law provides that the positional salary of judges shall be computed by multiplying a respective positional salary coefficient established in the Appendix to this Law by the minimal monthly salary approved by the Government. The positional salary shall be rounded following the common rules of rounding numbers so that the last figure would be either 0 or 5.

Assessing the compliance of these provisions of Paragraph 2 of Article 4 of the Law with Article 109 of the Constitution and the principle of a state under the rule of law established in the Constitution, one has to note that therein a manner of computing the positional salary of the judge is pointed out. In itself this rule does not determine the size of salaries received by judges. The size of the salary of the judge will be determined by the coefficient of the positional salary, which is established in the Appendix to the Law.

Taking account of the arguments set forth, it should be concluded that the impugned provisions of Paragraphs 1 and 2 of Article 4 of the Law in themselves do not restrict the material guarantees of independence of judges and courts, therefore, they are in compliance with Article 109 of the Constitution, as well as the principle of a state under the rule of law entrenched in the Constitution.

8. Paragraph 1 of Article 5 of the Law provides that judges shall be paid extra pay for the years served for the State of Lithuania from 11 March 1990 in posts of public administration and public servants of “A” and “B” levels, as well as in the posts pointed out in Items 1–6 of Paragraph 3 of Article 4 of the Law on Public Service. Paragraph 3 of Article 5 of the Law provides for the size of the extra pay, which is 3 percent of the positional salary for every three years, however, the size of the extra pay may not exceed 30 percent of the positional salary.

Until the Law went into effect, such extra pays for the years served for the State of Lithuania had not been paid to judges. These provisions do not deny the independence of judges and courts entrenched in the Constitution, or the constitutional principle of a state under the rule of law.

Taking account of the arguments set forth, it should be concluded that the impugned provisions of Paragraphs 1 and 3 of Article 5 of the Law are in compliance with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

9.1. Item 1 of Paragraph 3 of Article 7 of the Law on the Work Pay of State Politicians, Judges and State Officials (wording of 29 August 2000) provides that the judges whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months as well as of the established additional and extra pay of the preceding twelve months is bigger than the remuneration for work established in this law shall, upon this law going into effect, be paid the remuneration for work that they would have been paid until then and it shall not be increased in 2000. During the established transitional period (from 1 January 2001 till 1 January 2003) the former remuneration for work paid until 1 January 2001 shall be reduced by computing the appertaining remuneration for work for every month by the established formula, until it becomes equal with the remuneration for work established in this law.

In Item 1 (wordings of 17 October 2000 and 27 March 2001) of Paragraph 3 of Article 7 of the Law the nature of legal regulation remained virtually intact. Item 1 (wording of 17 October 2000) of Paragraph 3 of Article 7 of the Law changed the formula of the computing of the remuneration, which was to be reduced for the judges whose remuneration was bigger than established in this law. In Item 1 (wording of 27 March 2001) of Paragraph 3 of Article 7 of the Law the coefficients of the re-computing of judges’ salaries were changed, by which the former salaries of judges were reduced and different periods of application of these coefficients were provided for. Thus, the legal regulation established in Item 1 (wording of 29 August 2000) of Paragraph 3 of Article 7 of the Law is common with that established in the same item in its wordings of 17 October 2000 and 27 March 2001, the said item in all aforementioned wordings established the legal regulation by which the salary received by the judges whose salary was bigger than established in this law had to be reduced. Therefore, the compliance of the impugned wordings of Item 1 of Paragraph 3 of Article 7 of the Law with the Constitution should be considered concurrently.

9.2. In the course of the investigation of Item 1 of Paragraph 3 of Article 7 of the Law (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), it needs to be noted that several norms were consolidated therein.

First, in Item 1 of Paragraph 3 of Article 7 of the Law it is established that the judges whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months as well as of the established additional and extra pay of the preceding twelve months is bigger than the remuneration for work established in this law shall, upon this law going into effect, be paid the remuneration for work that they would have been paid until then and it shall not be increased in 2000.

Second, in Item 1 of Paragraph 3 of Article 7 of the Law it is established that during the established transitional period the remuneration for work of these judges shall be reduced by computing the appertaining remuneration for work for every month by the established formula, until it becomes equal with the remuneration for work established in this law.

Third, Item 1 of Paragraph 3 of Article 7 of the Law provides for the formula and coefficients of the computing of remuneration for work during the transitional period.

9.3. The petitioners ground their petition requesting an investigation into whether Item 1 of Paragraph 3 of Article 7 of the Law is in conformity with the Constitution on the fact that the said item provides for reduction of the salaries which were received by judges exercising judicial functions in a professional capacity until 1 January 2000.

The Constitutional Court, analysing the guarantees of the principle of the independence of judges and courts entrenched in Article 109 of the Constitution, in its ruling of 6 December 1995, noted that any attempts to reduce the salary or other social guarantees of judge or cut the budget of the judiciary are interpreted as an infringement on the judicial independence. The content of this rule was construed in the Constitutional Court’s decision of 12 January 2000.

While analysing the provision of Item 1 of Paragraph 3 of Article 7 of the Law that the judges whose salary is bigger than the salary of judges established by law shall be paid the former salary and that it shall not be increased in 2000, it should be noted that in this provision of the Law the size of salaries to be paid to judges is established by law, i.e. the law established an obligation of the state to pay the salaries to judges of no less size than the size of salaries paid to judges until the enactment of this law. Alongside, in this provision of the Law it was established that this salary of the judge shall not be increased in 2000. Consequently, this provision did not establish reduction of the former salaries of judges.

Taking account of the above-mentioned arguments, it should be concluded that the provision of Item 1 of Paragraph 3 of Article 7 of the Law (wordings of 29 August 2000, 17 October 2000 and 27 March 2001) that the judges “whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the three preceding months as well as of the established additional and extra pay of the preceding twelve months (hereinafter referred to as the former remuneration for work) is bigger than the remuneration for work established in this Law shall, upon the entry of this Law into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000” is in compliance with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

The other aforementioned norms of Item 1 of Paragraph 3 of Article 7 of the Law are of a different character. It is pointed out therein that during the established transitional period the salary received by respective judges shall be reduced by computing the salary appertaining to them for every month by the established formula. It is clearly evident form the legal regulation consolidated in these norms that reduction of judges’ salaries is provided for therein.

Taking account of the arguments set forth, it should be concluded that Item 1 of Paragraph 3 of Article 7 of the Law (wordings of 29 August 2000, 17 October 2000 and 27 March 2001) to the extent that it provides that, for the judges whose average remuneration for work is bigger than the remuneration for work established in this law, during the established transitional period (from 1 January 2001 till 1 January 2003) the former remuneration for work paid until 1 January 2001 shall be reduced by computing the appertaining remuneration for work for every month (until it becomes equal with the remuneration for work established in this law), by means of an established formula conflicts with Article 109 of the Constitution.

After it has been held that these provisions are in conflict with Article 109 of the Constitution, alongside, it must be held that they are also in conflict with the principle of a state under the rule of law entrenched in the Constitution.

9.4. Paragraph 4 of Article 7 of the Law provides: “During the transitional period, the remuneration for work for persons either elected or appointed to the post of a <…> judge <…> shall be established and computed under the provisions of this Article and aforesaid formulas wherein C means the size of the remuneration for work of persons either elected or appointed to the post of a <…> judge <…> which was computed under the conditions of remuneration for work that had been in force until this Law went into effect.”

While assessing the legal regulation established in Paragraph 4 of Article 7 of the Law, one must note that thereby the remuneration of persons appointed as judges during the transitional period is established, which is computed by applying the provisions of Article 7 of the Law and the formulas pointed out therein. Thus, to compute the remuneration of the judges whose remuneration is bigger than the remuneration established in the Law, the provisions and formulas are applied establishing reduction of the remuneration of judges during the transitional period. Therefore, Paragraph 4 of Article 7 of the Law to the extent that it provides that during the transitional period the remuneration of appointed judges is computed on the basis of the provisions and formulas of Article 7 of the Law, by which, during the transitional period, the remuneration of judges is reduced, conflicts with Article 109 of the Constitution.

After it has been held that the impugned provisions of Paragraph 4 of Article 7 of the Law are in conflict with Article 109 of the Constitution, alongside, it must be held that they are also in conflict with the principle of a state under the rule of law entrenched in the Constitution.

9.5. Paragraph 5 of Article 7 of the Law (wording of 9 August 2000) provided that, as of 1 January 2006, judges must be paid the remuneration established in this law. In Paragraph 5 of Article 7 of the Law in its wording of 27 March 2001 this provision was replaced by the provision stating that after the transitional period is over, judges must be paid the remuneration established in this law. Thus, Paragraph 5 of Article 7 of the Law in its wording of 9 August 2000 defines the date as of which judges must be paid the remuneration established in this law by indicating the year 2006, while its wording of 27 March 2001 provides that judges must be paid the remuneration established in this law, after the transitional period is over. Thus, the provisions of Paragraph 5 of Article 7 of the Law (wordings of 9 August 2000 and 27 March 2001) establish the date as of which judges must be paid the remuneration established in the Law.

Assessing the compliance of the provisions of Paragraph 5 of Article 7 of the Law with the Constitution, one has to link them with the legal regulation established in Article 7 of the Law, as well as on that by which the size of the former remuneration received by judges is reduced.

Taking account of these arguments, it should be concluded that Paragraph 5 of Article 7 of the Law (wordings of 9 August 2000 and 27 March 2001) to the extent that it establishes reduction of remuneration of the judges whose remuneration is bigger than established in this law as provided in Article 7 of the Law, conflicts with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

9.6. Paragraph 6 of Article 7 of the Law provides that while the remuneration for work is computed for judges during the transitional period, the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Law on Public Service shall be applicable.

The aim of Paragraph 6 of Article 7 of the Law is to establish the size of the coefficient base of the positional salary, applicable during the transitional period. The impugned provision of Paragraph 6 of Article 7 of the Law is of a blanket character as it provides that while respective remuneration for work is computed, the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Law on Public Service shall be applicable. Under Item 1 of Paragraph 5 of Article 69 of the Law on Public Service, the value in Litas of the coefficient of the basic salary shall be made equal to the amount of the basic salary coefficient base approved by the Government which shall be determined without increasing the funds provided for remuneration in the 2000 state and municipal budgets. The size of the basic salary shall, under the provisions of Paragraph 2 of Article 32 of the Law on Public Service, be established by multiplying the appropriate coefficient of the basic salary by the size of the coefficient base.

As it is evident form the content of the impugned norm, therein one of the elements of computation of judges’ remuneration is established, which is the basic salary coefficient base. In itself, the provision consolidating this element is in compliance with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

The provision of Paragraph 6 of Article 7 of the Law that the said basic salary coefficient base is applicable during the transitional period should be assessed differently. By this provision of the Law a transitional period is also consolidated during which the remuneration of judges exercising judicial functions in a professional capacity is reduced, therefore, the said provision conflicts with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

Taking account of the arguments set forth, it should be concluded that Paragraph 6 of Article 7 of the Law to the extent that while the remuneration for work is computed for judges the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Law on Public Service shall be applicable is in compliance with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution, while to the extent that it consolidates a transitional period during which the remuneration of judges exercising judicial functions in a professional capacity is reduced conflicts with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

10. In Chapter II entitled “Positional Salaries of Judges” of the appendix to the Law judicial institutions and coefficients of positional salaries of sizes expressed in MMS are established. The positional salaries of respective judges are computed by multiplying the established coefficient of the positional salary, which is provided for in Chapter II of the Appendix to the Law, by the MMS approved by the Government.

It needs to be noted that Chapter II of the Appendix to the Law is directly connected with the regulation established in Item 1 of Paragraph 3 of Article 7 of the Law (wordings of 29 August 2000, 17 October 2000 and 27 March 2001) under which the judges whose average remuneration of work is bigger than the remuneration for work established in this Law is reduced by means of a respective formula, until it becomes equal with the remuneration for work established in the Law. Chapter II of the Appendix to the Law just precisely establishes as to what positional salaries must be paid to judges under the Law after the transitional period is over.

Taking account of the arguments set forth, it should be concluded that Chapter II “Positional Salaries of Judges” of the Appendix to the Law to the extent that the established positional salaries of judges in MMS sizes and respective coefficients are smaller than the remuneration which was received by judges before this law had gone into effect conflicts with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution.

11. Article 5 of the Constitution provides: “In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary”. By this norm the content whereof is particularised in other articles of the Constitution, the principle of the separation of powers is established. This is the main principle of organisation and activity of a democratic state under the rule of law. This means that the legislative, executive and judicial powers must be separate, sufficiently independent, but they must also be balanced.

In the context of the case at issue, it needs to be noted that the principle of the separation of powers is inseparable from the independence of judges and courts which is characteristic of organisation of the judiciary. Therefore, in the course of the assessment of the compliance of the impugned provisions of Articles 4, 5 and 7 of the Law, as well Chapter II entitled “Positional Salaries of Judges” of the Appendix to the Law, with Article 5 of the Constitution, it must be considered whether the legislature, by means of such regulation, did not violate the fundamentals of the organisation and activities of the branches of state power established in the Constitution, and whether such regulation is in line with the independence of judges and courts as an essential condition for an independent functioning of the judiciary.

Having held that Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and 27 March 2001), the provision establishing the transitional period of Paragraph 6 of Article 7 of the Law and Chapter II of the Appendix to the Law to the extent that it provides for reduction of remuneration for the judges whose remuneration is bigger than the remuneration of judges established in this law, the provision of Paragraph 4 of Article 7 of the Law that the remuneration of the judges appointed to the post of a judge during the transitional period is computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration conflict with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution, it should be held that these provisions are in conflict with the principle of the separation of powers enshrined in the Constitution as well.

Taking account of the arguments set down in this ruling, it should be concluded that Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and 27 March 2001), the provision establishing the transitional period of Paragraph 6 of Article 7 of the Law and Chapter II of the Appendix to the Law to the extent that it provides for reduction of remuneration for the judges whose remuneration is bigger than the remuneration of judges established in this law, the provision of Paragraph 4 of Article 7 of the Law that the remuneration of the judges appointed to the post of a judge during the transitional period is computed on the basis of the provisions and formulas of Article 7 of this Law which establish reduction of judges’ remuneration conflict with Article 5 of the Constitution.

12. As it has been mentioned, the incompatibility of the post of a judge with any other post or employment as established in Paragraph 1 of Article 113 of the Constitution is determined by a special legal situation of a judge, as a representative of the judiciary. By means of the established prohibition, one attempts to ensure the independence and impartiality of judges, which are necessary conditions for the implementation of justice.

In the norms of the Law impugned by the petitioners, remuneration for judges and its payment during the transitional period are established. Paragraph 1 of Article 113 of the Constitution establishes the posts and activities incompatible with the work of the judge and the prohibition on receiving any remuneration other than the salary established for judges and payments for educational or creative activities.

Thus, the impugned provisions of the Law do not provide for coordination of the post of the judge with other elective or appointive posts, employment in any business, commercial, or other private establishment or company. Neither do these provisions deny the prohibition applied to a judge against receiving any remuneration other than the salary established for judges and payments for educational or creative activities. As the impugned provisions of the Law regulate relations of a different character than Paragraph 1 of Article 113 of the Constitution, they are in compliance with Paragraph 1 of Article 113 of the Constitution.

13. Assessing the compliance of the impugned provisions of the Law with Paragraph 1 of Article 114 of the Constitution, one has to note that the norms established in Paragraph 2 of Article 109 and Paragraph 1 of Article 114 of the Constitution are closely linked. Even though the impugned provisions of the Law do not provide for any measures that would permit institutions of state power and administration to interfere with the activities of courts, however, the said provisions to the extent that they deny the principle of independence of judges and courts create preconditions to exert influence on activities of judges and courts.

Having held that Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and 27 March 2001), the provision establishing the transitional period of Paragraph 6 of Article 7 of the Law and Chapter II of the Appendix to the Law to the extent that it provides for reduction of remuneration for the judges whose remuneration is bigger than the remuneration of judges established in this Law, the provision of Paragraph 4 of Article 7 of the Law that the remuneration of the judges appointed to the post of a judge during the transitional period is computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration conflict with Article 109 of the Constitution and the principle of a state under the rule of law entrenched in the Constitution, it should be held that these provisions are in conflict with Paragraph 1 of Article 114 of the Constitution.

Taking account of the arguments set down in this ruling, it should be concluded that Item 1 of Paragraph 3 of Article 7 (wordings of 29 August 2000, 17 October 2000 and 27 March 2001), Paragraph 5 of Article 7 (wordings of 29 August 2000 and 27 March 2001), the provision establishing the transitional period of Paragraph 6 of Article 7 of the Law and Chapter II of the Appendix to the Law to the extent that it provides for reduction of remuneration for the judges whose remuneration is bigger than the remuneration of judges established in this Law, the provision of Paragraph 4 of Article 7 of the Law that the remuneration of the judges appointed to the post of a judge during the transitional period is computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration conflict with Paragraph 1 of Article 114 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55, 56 and Paragraph 4 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraphs 1 and 2 of Article 4 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials to the extent that they establish in what manner the positional salaries of judges must be computed and Paragraphs 1 and 3 of Article 5 of the same law to the extent that they establish extra pay for judges for the years served for the State of Lithuania are in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that the provision of Item 1 of Paragraph 3 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials (wordings of 29 August 2000, 17 October 2000 and 27 March 2001) that the judges “whose average remuneration for work computed under the procedure established by the Government on the basis of the official remuneration (positional salaries) received during the preceding three months and of the established additional and extra pay of the preceding twelve months <…> is bigger than the remuneration for work established in this Law shall, upon the entry of this Law into effect, be paid the remuneration for work that they will have been paid until then and it shall not be increased in 2000” is in compliance with the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 6 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials to the extent that while the remuneration for work is computed for judges the size of the coefficient base of the positional salary established in Item 1 of Paragraph 5 of Article 69 of the Law on Public Service shall be applicable is in compliance with Constitution of the Republic of Lithuania.

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

5. To recognise that Paragraph 4 of Article 7 of the Republic of Lithuania’s Law on the Work Pay of State Politicians, Judges and State Officials to the extent that it establishes that the remuneration for work of the judges appointed to the post of a judge during the transitional period is established and computed on the basis of the provisions and formulas of Article 7 of this law which establish reduction of judges’ remuneration conflict with Article 5, Article 109, Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania.

6. To dismiss the initiated legal proceedings concerning the compliance of the Resolution of the Government of the Republic of Lithuania (No. 499) “On the Temporary Experimental Procedure for the Work Pay of Heads and Other Officials of State Authority, State Administration and Law Enforcement Bodies” of 29 November 1991, the Resolution of the Government of the Republic of Lithuania (No. 666) “On the Work Pay of Judges of Courts, Officials and Other Employees of the Prosecutor’s Office and the State Security Department of the Republic of Lithuania” of 24 June 1997, the Resolution of the Government of the Republic of Lithuania (No. 1494) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 689) ‘On the Work Pay of Chief Officials and Functionaries of Law and Order Institutions and of Law Enforcement and Control Institutions’ of 30 June 1997’” of 28 December 1999 with the Constitution of the Republic of Lithuania.

7. To dismiss the initiated legal proceedings concerning the compliance of Appendix 6 to Paragraph 1 of Article 1 of the Republic of Lithuania’s Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets and Article 9 of the Republic of Lithuania’s Law Amending the Law on the Approval of the Financial Indicators of the 2000 State Budget and Municipal Budgets with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Egidijus Kūris      Zigmas Levickis

 

Augustinas Normantas       Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius       Stasys Stačiokas       Teodora Staugaitienė