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On dismissing legal proceedings in a case

Case No. 20/2012

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE DISMISSAL OF THE LEGAL PROCEEDINGS IN THE CASE SUBSEQUENT TO THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF THE SIZES OF, AND THE RULES FOR THE PAYING OF, PAYMENT TO ADVOCATES FOR THE PROVISION AND COORDINATION OF SECONDARY LEGAL AID (WORDING OF 18 JULY 2012), AS APPROVED BY THE 22 JANUARY 2001 RESOLUTION (NO. 69) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA, WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 19 November 2014, No. KT49-S33/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, and Algirdas Taminskas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-33/2012) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid (wording of 18 July 2012), as approved by the Resolution of the Government of the Republic of Lithuania (No. 69) “On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid” of 22 January 2001, insofar as, after establishing the fixed sizes of payment to advocates for the provision of secondary legal aid, it is not provided that the said payment is calculated by applying the established coefficients that are based on the minimum monthly salary approved by the Government, is not in conflict with Articles 23 and 29 and the provision “each human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

  1. A group of members of the Seimas, the petitioner, has applied to the Constitutional Court with a petition requesting an investigation into whether the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid (wording of 18 July 2012), as approved by the Government Resolution (No. 69) “On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid” of 22 January 2001, insofar as, after establishing the fixed sizes of payment to advocates for the provision of secondary legal aid, it is not provided that the said payment is calculated by applying the established coefficients that are based on the minimum monthly salary approved by the Government, is not in conflict with Articles 23 and 29 and the provision “each human being <...> shall have the right <...> to receive fair pay for work <...>“ of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.
  2. On the grounds of the 26 November 2012 ordinance (No. 2B-82) of the President of the Constitutional Court, subsequent to the said petition, the preparation of case No. 20/2012 for a hearing at the Constitutional Court began.

The Constitutional Court

holds that:

1. On 22 January 2001, the Government adopted the Resolution (No. 69) “On the Approval of the Sizes of, and the Procedure for, Work Pay to Advocates and Assistant Advocates Providing State Legal Aid and on the Assent to Conduct Public Procurement from a Single Source”, by means of which it approved the Sizes of, and the Procedure for, Work Pay to Advocates and Assistant Advocates Providing State Legal Aid.2. Later the said government resolution was amended, inter alia, by the Government Resolution (No. 469) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 69) ‘On the Approval of the Sizes of, and the Procedure for, Work Pay to Advocates and Assistant Advocates Providing State Legal Aid and on the Assent to Conduct Public Procurement from a Single Source’ of 22 January 2001” of 27 April 2005, by means of which, after government resolution No. 69 of 22 January 2011 was set forth in its new wording, the said procedure was named as the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid (hereinafter referred to as the Rules), and also by the Government Resolution (No. 396) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 69) ‘On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid’ of 22 January 2001” of 2 May 2006, by means of which the Rules were amended and set forth in their new wording.Item 2 (with subsequent amendments and supplements) of the Rules (wording of 2 May 2006), inter alia, prescribed that the size of payment to advocates for the provision of secondary legal aid is calculated by applying the coefficients that are established in these rules and based on the minimum monthly salary approved by the Government.3. On 18 July 2012, the Government adopted the Resolution (No. 884) “On Amending ‘The Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid’, as Approved by the 22 January 2001 Resolution (No. 69) of the Government of the Republic of Lithuania”, by means of which the Rules (wording of 2 May 2006 with subsequent amendments and supplements) were amended and set forth in their new wording.It should be noted that the Rules (wording of 18 July 2012) established the fixed sizes of payment to advocates for the provision of secondary legal aid, i.e. they were expressed in specific amounts of money.It needs to be emphasised that the compliance of the legal regulation that is established in the Rules (wording of 18 July 2012) with the Constitution is doubted by the petitioner, inter alia, in the aspect that the establishment of the fixed sizes of the said payment does not ensure its changes in accordance with the state’s economic indicators.4. On 17 July 2013, the Government adopted the Resolution (No. 645) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 69) ‘On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid’ of 22 January 2001” (it, with certain exceptions, came into force on 1 September 2013), by means of which the Rules (wording of 18 July 2012) were amended again and set forth in their new wording, inter alia, their title was changed.4.1. Item 3 of the Sizes of, and the Rules for the Paying of, Payment for the Provision and Coordination of Secondary Legal Aid (wording of 17 July 2013), inter alia, prescribes: “The basic size of payment for secondary legal aid <...> shall be a size established by the Government of the Republic of Lithuania, on the basis of which the size of payment paid to advocates for the provision of secondary legal aid is calculated.”The comparison of the legal regulation that is established in the impugned Rules (wording of 18 July 2012) with the one established after the said rules were set forth in their new wording of 17 July 2013 makes it clear that the sizes of payment to advocates for the provision of secondary legal aid are no longer fixed, but are linked to the government-established basic size of payment for secondary legal aid.4.2. In the context of the petition of the petitioner, it should be noted that Item 3.1 of government resolution No. 645 of 17 July 2013 prescribes: “After assessing the opinion of the Lithuanian Bar Association, the average annual inflation of the previous year (based on the calculation of the national consumer price index) and the influence of other factors affecting the size of, and changes in, average work remuneration in the public sector, the Ministry of Justice shall review, every year before 1 September, the basic size of payment for secondary legal aid and submit to the Government of the Republic of Lithuania proposals concerning the change in the basic size of payment for the provision of secondary legal aid. The new basic size of payment for secondary legal aid may not be smaller than the existing basic size, with the exception of the cases where the economic and financial situation in the state deteriorates substantially.”Thus, after the impugned legal regulation was amended by means of government resolution No. 645 of 17 July 2013, the preconditions were also created for changing the said basic size and, accordingly, the sizes of payment for secondary legal aid, taking account of the economic indicator—average annual inflation, and also other factors affecting the size of, and changes in, average work remuneration in the public sector.4.3. It should be held that the legal regulation that is established in the Rules (wording of 18 July 2012) was amended in essence after the said rules were set forth in their new wording of 17 July 2013: the sizes of payment for the provision of secondary legal aid that are established under the said regulation are no longer fixed, but are linked to the government-established basic size of payment for secondary legal aid, by creating preconditions for changing the said basic size in view of, inter alia, economic indicators.

  1. Paragraph 4 (wording of 11 July 1996) of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania provides that the annulment of the impugned legal act shall be the grounds to adopt a decision to dismiss the instituted legal proceedings. If this becomes clear before the beginning of the judicial hearing, the Constitutional Court shall decide this question in the deliberation room.

In its acts, the Constitutional Court has held on more than one occasion that the formulation “shall be the grounds <...> to dismiss the instituted legal proceedings” of Paragraph 4 of Article 69 of the Law on the Constitutional Court should be construed as establishing the Constitutional Court’s right, in cases when subjects other than courts, specified in Article 106 of the Constitution, have applied to the Constitutional Court, and the impugned legal act (part thereof) is no longer effective—it is judged to be no longer valid (annulled or amended) or its validity has ended—to dismiss the instituted legal proceedings by taking account of the circumstances of the case at issue (inter alia, rulings of 28 March 2006 and 2 May 2012, and decisions of 5 July 2013 and 7 October 2014).

As mentioned before, the legal regulation that is established in the Rules (wording of 18 July 2012), in respect of the compliance of which with the Constitution a group of members of the Seimas, the petitioner, has applied to the Constitutional Court, was amended in substance after the said rules were set forth in their new wording of 17 July 2013.

It should be noted that, after the Sizes of, and the Rules for the Paying of, Payment for the Provision and Coordination of Secondary Legal Aid (wording of 17 July 2013) came into force, the impugned legal regulation that is established in the Rules (wording of 18 July 2012) ceased to be valid.

  1. In the light of the foregoing arguments, the instituted legal proceedings subsequent to the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid (wording of 18 July 2012), as approved by the Government Resolution (No. 69) “On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid” of 22 January 2001, insofar as, after establishing the fixed sizes of payment to advocates for the provision of secondary legal aid, it is not provided that the said payment is calculated by applying the established coefficients that are based on the minimum monthly salary approved by the Government, is not in conflict with Articles 23 and 29 and the provision “each human being <...> shall have the right <...> to receive fair pay for work <...>“ of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, must be dismissed.

Conforming to Article 28 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 adopts the following

decision:

To dismiss the instituted legal proceedings in case No. 20/2012 subsequent to the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid (wording of 18 July 2012), as approved by the Resolution of the Government of the Republic of Lithuania (No. 69) “On the Approval of the Sizes of, and the Rules for the Paying of, Payment to Advocates for the Provision and Coordination of Secondary Legal Aid” of 22 January 2001, insofar as, after establishing the fixed sizes of payment to advocates for the provision of secondary legal aid, it is not provided that the said payment is calculated by applying the established coefficients that are based on the minimum monthly salary approved by the Government, is not in conflict with Articles 23 and 29 and the provision “each human being <...> shall have the right <...> to receive fair pay for work <...>“ of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

Justices of the Constitutional Court:                                    Elvyra Baltutytė
                                                                                                        Vytautas Greičius
                                                                                                        Danutė Jočienė
                                                                                                        Pranas Kuconis
                                                                                                        Gediminas Mesonis
                                                                                                        Vytas Milius
                                                                                                        Egidijus Šileikis
                                                                                                        Algirdas Taminskas