On 1 August 1922, the Constituent Assembly adopted the first permanent Constitution of the State of Lithuania. After intense debate at the Constituent Assembly, Article 3 of the Constitution proclaimed that “[n]o law contrary to the Constitution has any power in the State of Lithuania”. Although this Constitution also consolidated the principle of its supremacy, the legislators of the Constitution did not establish any institution that could deal with issues related thereto.
Following the 17 December 1926 military coup d’état, the evolution of Lithuania’s political system shifted towards authoritarianism. However, even in such a political environment, after the principle of separation of powers had been denied, one abstained from officially rejecting the provision of the constitutionality of legal acts that was made in 1922. The 15 May 1928 Constitution of the State of Lithuania as well as the 12 May 1938 Constitution of Lithuania continued to proclaim that no law in conflict with the Constitution had any power in the state. It should be mentioned that the draft Constitution of 1938 included the establishment of a constitutional court, but the said provision was removed from the draft almost at the last minute.
Lithuanian scientific legal literature of that time broadly analysed the problems of constitutional development and debated whether the constitutional norm that no law in conflict with the Constitution is valid created the preconditions for courts not to apply a relevant legal act in specific cases. A fundamental work on these issues (“Konstitucinës ir teismo teisës pasieniuose” [“At the Frontiers of Constitutional and Court Law”]) was published by Mykolas Römeris.
No consensus of law science representatives about the constitutional nature of the State Council, established under the 15 May 1928 Constitution of the State of Lithuania, existed then or exists now. Some authors maintain that this institution already performed the function of “constitutional review”; others take the view that this was some sort of the beginnings of an administrative court. Despite the disagreements on the status of the State Council and the functions performed by it, there is a general consensus that the position expressed in the “opinions” of this institution had an influence on the development and application of law. Acts of the Supreme Tribunal, i.e. the supreme judicial instance, adopted in criminal and civil cases were important in the Lithuanian law of that time as well, since they also interpreted and implemented constitutional provisions accordingly.
Thus, although the 1918–1940 legal system of the Republic of Lithuania contained some rudiments of constitutional review, no mechanism for verifying the constitutionality of legal acts existed. This is, at least in part, explained by the historical context. At that time, a discussion on the legal mechanisms for ensuring the constitutionality of laws in many other European states was also at its very beginning. More decisive steps in this area were taken, before the Second Word War, only by Austria (1920), Czechoslovakia (1920), Lichtenstein (1925), Greece (1927), and Spain (1931), i.e. the said countries tried to consolidate the mechanism for constitutional review. This is the so-called first wave of the expansion of the constitutional review of laws; however, Fascism and Nazism, which became firmly established, as well as the Second World War precluded the new model of constitutional protection from establishing itself. It may be presumed that the aforementioned legal phenomena and scientific ideas would also have nurtured a decision on constitutional justice in Lithuania; however, the occupation and annexation of Lithuania carried out by the USSR in 1940 discontinued the process of Lithuanian constitutionalism. The legal system of a foreign state was imposed on Lithuania by force.
The constitution of the Lithuania SSR drawn up at that time was not adopted; however, the idea of a constitutional court as an institutional form of ensuring the functioning of the democratic system remained very popular.
At its founding congress of 23 October 1988, the Lithuanian Reform Movement Sàjûdis adopted the Resolution (No. 25) “On Establishing the Constitutional Court”. The congress also proposed that the Supreme Council of the Lithuanian SSR should establish the Constitutional Court that would carry out the “supervision of laws and legal acts”. The creation of constitutional review was inseparable from the attempts to strengthen the sovereignty of Lithuania and resist against the political and legal dictate of the USSR. In response to Moscow’s initiative to create a single system of constitutional supervision in the whole USSR, the then Supreme Council pronounced that the Law of the USSR “On Constitutional Supervision in the Union of Soviet Socialist Republics” was not valid in the territory of Lithuania as of the day of its adoption, while, on 31 January 1990, the Presidium of the Supreme Council of the Lithuanian SSR set up a working group which had to draw up a draft Law on the Constitutional Court. None of the several drafts was adopted; however, all these initiatives showed that, at the beginning of 1990, there was a mature opinion that, in the future structure of the state, an institution of constitutional review would have to be a very important factor in creating a democratic legal state.
The third document, after suspending the validity of the 12 May 1938 Constitution, consolidated a transitional constitutional order, i.e. approved the Provisional Basic Law. A draft Law on the Constitutional Court drawn up by the Council of Ministers of the Republic of Lithuania was submitted to the Supreme Council on 18 June 1990. However, this draft law was not adopted due to various circumstances.
Although the period of the validity of the Provisional Basic Law was very important in the history of Lithuanian constitutionalism, certain obstacles impeded the integration of the function of constitutional review in the system of the legal norms of the said law. The smooth operation of the institute of constitutional review would have been impeded by the fact that the system of the norms of the Provisional Basic Law was rather contradictory and inconsistent, in addition, the procedure for amending it was very simple and the said legal act was constantly amended and supplemented.
A broader discussion on the establishment of the institution of constitutional review in Lithuania was resumed on 7 November 1990 after the Presidium of the Supreme Council set up a group for drawing up a draft Constitution of the Republic of Lithuania. The issue of the constitutionality of laws was one of the most important in creating a seamless system of constitutional norms. While creating a Lithuanian constitutional review model, an interwar legal thought, especially Mykolas Romeris’ works, were analysed, the works of expatriate lawyers were also studied, but the legal acts and practice of constitutional review of the countries that had gained practice in constitutional justice (Austria, France, Germany, Italy, Portugal, Spain, the United States of America, etc.) were analysed in the most extensive manner.
Views differed on the institutional forms of such review or the methods of its implementation. The constitutional review model, consolidated in courts of common law tradition (review is implemented by courts of general jurisdiction), was closer for some, while the tradition of civil law (review is implemented by a special constitutional court) was closer for others. Tackling the abovementioned issue also had to determine the further development of the Lithuanian legal system—whether Lithuania will turn towards the tradition of common law or whether it will orientate itself towards the tradition of civil law. Disputes also took place about whether the form of the preventive or ex post facto review should prevail.
Thus, two draft Constitutions were prepared. They reflected different positions, including those regarding the conception of constitutional review. The draft Constitution prepared by the Provisional Commission of the Supreme Council for Drafting the Constitution gave priority to the Constitutional Court to whom a separate Chapter VIII was designated. It provided for the competence of the court that is essentially consolidated in the Constitution that is valid at present. Meanwhile, the draft Constitution prepared by the Union “For Democratic Lithuania” would assign the function of constitutional review for the Supreme Tribunal as a supreme-level institution of the Judiciary. The above draft Constitutions consolidated not only the different institutional forms of constitutional review, but also different competence.
On 4 August 1992, the Supreme Council-Reconstituent Seimas adopted the resolution whereby it consented to the protocol drawn up by the group for the coordination of constitutional issues. The protocol had consolidated the agreements of representatives from political groups on the principal provisions of the future Constitution. One of such provisions was the principles of the conception of constitutional review. It was envisaged that the Constitutional Court would have to carry out constitutional review and that this court would be enabled to investigate the compliance of laws, as well as legal acts of the President of the Republic and the Government, with the Constitution, in case the President of the Republic, the Government, or 1/5 of Seimas members have applied regarding these issues. Thus, the essential features of the status of the Constitutional Court were consolidated as a result of a political compromise. Later, these agreements were essentially consolidated in the Constitution as well. For more about the competence of the Constitutional Court, see http://www.lrkt.lt/en/about-the-court/activity/competence/182.
The final discussion on the draft Constitution that had to be published in the press prior to the referendum took place on 12 October 1992. On 13 October, the Supreme Council-Reconstituent Seimas consented to the draft Constitution and put it to the referendum.
The Constitution of the Republic of Lithuania, which was adopted in the 25 October 1992 referendum and came into force on 2 November 1992, provided for an institution of constitutional jurisdiction—the Constitutional Court—for the first time in the history of the State of Lithuania.
Thus, Lithuania, as most other states of the Central and Eastern Europe, has chosen the European model of constitutional justice, according to which constitutional review is carried out by a special institution—the Constitutional Court. The fact that Lithuania belongs to the area of continental law, the ideas spread by Mykolas Romeris about the necessity to control the constitutionality of laws, the discussions about the significance of the Constitutional Court in the period of the restoration of the State, the legal thought of Western countries, and the evident triumph of this model in European countries at the end of the 20th century, were among the circumstances that determined such a choice.
Upon the collapse of the socialist system, in Lithuania, as well as in other states of the Central and Eastern Europe, a new phase of the development of constitutional justice began (or, according to the prominent French constitutionalist Louis Favoreu, the fourth wave of the expansion of constitutional justice). Even after World War II, in the latter states, differently from other states of Western Europe, the institute of constitutional review was not introduced due to the incompatibility with the existing political system. Except for the former Yugoslavia, as well as Romania and Czechoslovakia, in which there were certain rudiments of constitutional review, the states in this region did not have any tradition of constitutional review, therefore, its introduction meant a turning point in the former principle of unity of state powers. Constitutional courts were founded in those states in order to ensure a democratic constitutional stability and to prevent the negation of democratic values.
The norms of Chapter VIII “The Constitutional Court” of the Constitution on the definition of the status of the Constitutional Court, its competence, the principles of its formation, the legal status of justices, the consequences of the validity of acts, etc., served as the basis for the prepared draft Law on the Constitutional Court. One of the source that was invoked in drafting this law was the Law on the Federal Constitutional Court of Germany, as well as other legal acts regulating the activity of constitutional courts in various European states.
In view of the different experience of European states, in the course of the preparation of the draft law, discussions were held whether this legal act should contain only the norms defining the status of the Constitutional Court as a state institution, and the organisation of its work, or whether the judicial process should also be covered. Ultimately, the version of the consolidated law was chosen.
In the course of drafting, deliberating and adopting the Law on the Constitutional Court, discussions were also held about the right of persons to apply to the Constitutional Court directly and file constitutional complaints. However, during the drafting of the Constitution and the establishment of the institutional structure of the protection of human rights and fundamental freedoms it was decided that courts, Seimas ombudsmen, and most other state institutions would ensure an optimum protection of human rights and freedoms. On the other hand, one did not reject the assumption that, in the long run, the right of persons to apply to the Constitutional Court directly could be consolidated in the Constitution.
At the end of the deliberation, also the question was raised whether this law should be included into the list of the constitutional laws provided for in Article 69 of the Constitution, however, it was decided that this issue could be solved later after the approval of such a list by the Seimas.
On 3 February 1993, the Seimas adopted the Law on the Constitutional Court.
According to the Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania”, justices of the Constitutional Court and, from among them, the President of the Constitutional Court, had to be appointed not later than one month after the election of the President of the Republic. When justices of the Constitutional Court were appointed for the first time, three of them had to be appointed for a three-, three for a six-, and three for a nine-year term. In February–March 1993, in implementing the Constitution and this law, the Seimas appointed all justices of the Constitutional Court. On 23 March 1993, Juozas Þilys was appointed President of the Constitutional Court. For more about the former and present compositions of the Constitutional Court, the appointment of justices and their status, see http://www.lrkt.lt/en/structure/justices/appointment-and-status-of-justices/181.
The Constitutional Court became the first newly-founded state institution from among those provided for in the Constitution of 1992. All the other institutions provided for therein that did not exist prior to its entry into force were founded substantially later: the Seimas Ombudsmen’s Office was founded in 1994, the reformed four-stage (instead of the former two-stage) system of courts began functioning at the beginning of 1995, and even the election of the President of the Republic took place on 14 February 1993.
The Law on the Constitutional Court was adopted on 13 February 1993, upon the lapse of only three months from the entry into force of the Constitution, and the formation of the Court itself began pretty soon. Such speedy founding of the Constitutional Court was prompted by the necessity to elect the first Head of State after the restoration of the Independence: under the Constitution, the elected President of the Republic may take office only after it takes an oath which must be administered by the President of the Constitutional Court, or, in the absence of the latter, by a justice of the Constitutional Court, therefore, the corresponding institution—the Constitutional Court—had to be founded.
Due to Article 90 of the Law on the Constitutional Court whereby hearings of the Constitutional Court are held in its permanent seat, it was thought that the Court would not be able to begin the consideration of constitutional justice cases as long as it did not have its permanent seat. By the way, at the end of the deliberation on the draft Law on the Constitutional Court, it was discussed whether the seat of this Court should be moved to Trakai or Klaipëda, however, it was decided that the building of the Constitutional Court should be in the central part of Vilnius and symbolise the importance of the Judiciary in the structure of state institutions.
On 18 March 1993, the first sitting of the commission on issues of work organisation of the Constitutional Court of the Republic of Lithuania took place. The commission unanimously agreed that, in the process of the allocation of a building to the Constitutional Court, one should follow the provision that this building must be a separate one, it must conform to its purpose, and must represent the supreme judicial power. The first draft Seimas Resolution “On the Building of the Constitutional Court of the Republic of Lithuania” read: “The Seimas of the Republic of Lithuania, taking into account the role of the Constitutional Court of the Republic of Lithuania in the system of state institutions of the Republic of Lithuania, seeking to give a special meaning for the place of the building—the seat of the Constitutional Court—in the city of Vilnius, a century-old historical capital of Lithuania, following the provision that the main state institutions of power and governance of the State of Lithuania are concentrated in Gedimino Avenue, shall decide to assign the building, located on Gedimino Ave. 3, Vilnius, to the Constitutional Court of the Republic of Lithuania.” However, in the course of the discussion on the draft resolution, it was decided to adjourn the sitting and the commission was suggested to think about other alternative buildings for the Constitutional Court.
On 22 April 1993, the issue of the seat of the Constitutional Court was deliberated again. Drawing attention to the fact that the Constitutional Court is unable to begin its work, it was proposed that a decision be adopted without delay on the premises located on Gedimino Ave. 36, Vilnius, then housing the Ministry of Energy and the State Nuclear Power Safety Inspectorate. The decision on the building of the Constitutional Court was adopted by a substantial majority of votes. 59 members of the Seimas voted in favour of the decision, eight were against, and 11 abstained. The preamble to the decision retained the previously formulated provisions on the role of the Constitutional Court in the system of state institutions. By its resolution of 22 April 1993, the Seimas assigned the building located on Gedimino Ave. 36, Vilnius, to the Constitutional Court and, on 1 August 1993, it was transferred to the balance of the Constitutional Court. The building, designed by architect Zygmunt Tarasin for the Chamber of Commerce and Industry, was built in 1931.
After the most necessary conditions for preparing court hearings had been created, the Constitutional Court informed the public and the institutions of state power and governance that, as from 2 August 1993, it would begin the official registration of petitions to investigate whether legal acts were in compliance with the Constitution.
In this constitutional justice case, the Constitutional Court’s ruling was pronounced on 17 September 1993 and came into force on 22 September 1993.
The first decade of the activity of the Constitutional Court may be described as a period of the consolidation of the model of constitutional judicial review, which had never existed in Lithuania, in the Lithuanian legal system. During this period the number of petitions filed with the Constitutional Court and that of the cases considered by it were constantly increasing. During this period, the Constitutional Court adopted 154 acts by which the petitions of petitioners had been considered in substance, from among them—148 rulings, four decisions on the construction of acts of the Constitutional Court, and two conclusions.
Constitutional judicial review is the main instrument ensuring the effectiveness of the Constitution. This is especially important in those states where a new constitutional order is being created. When the political culture is still in its infancy, the activity of an institution of constitutional jurisdiction is even more important during the transitional period, since, under such conditions, it is much more difficult and much more important to preserve the Constitution as the supreme law. The role of the Constitutional Court during the period of unstable democratic values was defined by the President of the Constitutional Court of Hungary L?szló Sólyom as follows: “We are professional idealists in a pragmatic world. We represent abstract values of the Constitution and one of our most important functions is to restore the discredited reputation of law. I believe that this can serve us as the starting point for shattering the old world.”
Thus, during this period, the Constitutional Court not only had to carry out the constitutional review of legal acts, but also to form a new, unaccustomed concept of the legal system based on the Constitution and that of protection of human rights. In this aspect, the Constitutional Court’s Conclusion “On the Compliance of Articles 4, 5, 9, 14 as well as Article 2 of Protocol No. 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms with the Constitution of the Republic of Lithuania” of 24 January 1995 is important, in which the Constitutional Court interpreted the relation between the Constitution and the international treaty designed for the protection of human rights. The ruling of 9 December 1998 should also be regarded as an act of special importance of this period, in which the Constitutional Court revealed the essence of the fact that human rights are innate and ruled the death penalty unconstitutional. In addition, one of the last acts adopted during this decade—the ruling of 30 May 2003—is of utmost importance. This ruling formulated the doctrinal provision that the Constitution and final acts of the Constitutional Court, in which the constitutional doctrine is formed, are sources of constitutional law. This ruling also consolidated for the first time the provision that, under the Constitution, only the Constitutional Court has the powers to officially construe the Constitution.
Since its very establishment in 1993, the Constitutional Court has been developing and strengthening cooperation with both the constitutional courts of neighbouring and other states and with international institutions. On 7 October 1997, during the meeting of the Circle of the Presidents of the Conference of European Constitutional Courts held in Warsaw, the Constitutional Court became the nineteenth full member of this organisation. For more about the activity of the Constitutional Court in the sphere of international cooperation, see http://www.lrkt.lt/en/activity/international-cooperation/bilateral-cooperation/186.
On 2–3 September 2003, the International Conference “Constitutional Justice and the Rule of Law” took place, which was designated for the 10th anniversary of the activity of the Constitutional Court.
By the Constitutional Court’s decision of 5 March 2004, the Rules of the Constitutional Court of the Republic of Lithuania were approved, which defined the general questions of the organisation of work at the Constitutional Court, the rules of professional conduct of justices were set forth, the structure of the staff apparatus was established, etc.
On 13 July 2004, the Constitutional Act of the Republic of Lithuania “On Membership of the Republic of Lithuania in the European Union” was enacted. It came into force on 14 August 2004 and constitutionally consolidated the membership of the Republic of Lithuania in the European Union. After this amendment to the Constitution had been adopted, an inevitable question arose regarding the relation between national constitutional law and EU law. The Constitutional Court had to formulate some answers to these questions (e.g., in its decision of 8 May 2007 and its ruling of 24 December 2008).
Since 25 October 2005, on the initiative of the President of the Constitutional Court, annual solemn commemorations of the Day of the Constitution have been held, to which representatives from supreme institutions of the state and the judiciary as well as from academic institutions are invited.
In 2006–2007, the Constitutional Court formed a significant doctrine of the formation and reinterpretation of the constitutional doctrine. During this period, it had to consider an important case on its own status. By its ruling of 6 June 2006, the Constitutional Court officially put an end to the discussions on whether the Constitutional Court was a court. It was held in this ruling that, under the Constitution, the Constitutional Court is an institution of constitutional jurisdiction exercising constitutional judicial review; while deciding on the compliance of legal acts of lower legal force with legal acts of higher legal force within its competence and exercising its other constitutional powers, the Constitutional Court—an autonomous and independent court—administers constitutional justice and guarantees constitutional legality and the supremacy of the Constitution in the legal system.
By its resolution of 4 July 2007, the Seimas approved the Conception of an Individual Constitutional Complaint. However, an economic crisis began soon after that, and, on 17 December 2009, the Seimas adopted the Resolution “On Amending the Seimas Resolution ‘On Approving the Conception of the Institute of an Individual Constitutional Complaint’”, by which, due to the difficult economic and financial situation in the state, it was decided to postpone the terms of the implementation of this institute.
In 2008, the Seimas adopted certain amendments to the Law on the Constitutional Court and introduced the institute of a dissenting opinion of justices of the Constitutional Court. Until then, justices of this Court had not been allowed to express their dissenting opinions on rulings, conclusions, and decisions of the Constitutional Court.
During the XIVth Congress of the Conference of the European Constitutional Courts, which took place in Vilnius on 3–6 June 2008, an idea was developed to found the World Conference on Constitutional Justice (hereinafter—the WCCJ)—an organisation uniting institutions of constitutional review from countries all over the world. Being one of the initiators of the establishment of the WCCJ, the Constitutional Court of Lithuania was elected as a member of the preparatory Bureau (an institution entrusted with the organisation of the 1st Congress of the WCCJ) of the WCCJ.
2009–2013 was the period of the formation and development of the constitutional doctrine of an extraordinary situation due to the economic and financial crisis, during which the consideration of cases by the Constitutional Court saw the domination of the cases on the constitutionality of the austerity measures (the provisions of legal acts by which one sought to deal with the economic crisis) applied by the legislature and the executive. During this period, the Constitutional Court faced a considerable challenge—not only to assess whether the measures for resolving the crisis had been grounded and were in compliance with the Constitution, but also to deal with a substantially increased workload.
In 2010, the Constitutional Court published the book “Lietuvos Respublikos Konstitucinio Teismo oficialiosios konstitucinës doktrinos nuostatos, 1993–2009 [The Provisions of the Official Constitutional Doctrine of the Constitutional Court of the Republic of Lithuania in 1993–2009]” which saw a very favourable reaction from the public. The book collected and systematised the provisions of the official constitutional doctrine set forth in acts of the Constitutional Court.
At the end of 2011, reacting to the issue of the increased workload of the Constitutional Court, the Seimas adopted the corresponding amendments to the Law on the Constitutional Court by which it sought to accelerate the consideration of constitutional justice cases and to ensure more speedy constitutional judicial proceedings. These amendments created the opportunity to consider constitutional justice cases, in which one investigates the compliance of legal acts with the Constitution or laws, by means of written procedure, and repealed the legal regulation according to which the Constitutional Court used not to enjoy the right to consider several cases at the same time. These amendments to the constitutional justice proceedings were very efficient, indeed. For instance, in 2013 (i.e., when the 20th anniversary of the activity of the Constitutional Court was commemorated), the Constitutional Court adopted 25 rulings, and this was the biggest number during the entire period of its activity.
On 5 September 2013, the International Conference “Modern Tendencies of Constitutional Justice: The Relation Between National and International Law” took place, which was devoted for the 20th anniversary of the activity of the Constitutional Court. During the second decade of its activity, it adopted 187 acts by which the petitions of petitioners were considered in substance, from among them—166 rulings, 15 decisions on the construction of acts of the Constitutional Court, and six conclusions.
For instance, in its ruling of 24 January 2014, the Constitutional Court formulated the doctrine of amendments to the Constitution, by disclosing the limitations on the alteration of the Constitution that arise out of the Constitution itself, the content of the geopolitical orientation of the State of Lithuania, and the constitutional fundamentals of membership of the Republic of Lithuania in the European Union. Later, these doctrinal provisions were developed in the ruling of 11 July 2014 by interpreting the constitutional institute of referendums, the concept of the Constitution as supreme law and the legal basis of the life of the Nation, and by disclosing the principles of the independence of the State of Lithuania and democracy as non-amendable fundamental constitutional provisions. In its ruling of 18 March 2014, the Constitutional Court interpreted the relation of the international and national legal norms defining international crimes, formulated the principle of international law as the minimum standard of the constitutional protection of human rights, and more comprehensively considered the following questions important to the statehood of Lithuania: the continuity and identity of the Republic of Lithuania that restored its independence on 11 March 1990 with the State of Lithuania against which the aggression by the USSR was launched on 15 June 1940, the legal status of the institutions and participants of Lithuania’s resistance to the Soviet occupation, and the international, legal, historical and political context related to international crimes committed by the occupation totalitarian regimes.
In 2014, the continuation of the book “Lietuvos Respublikos Konstitucinio Teismo oficialiosios konstitucinës doktrinos nuostatos, 1993–2009 [The Provisions of the Official Constitutional Doctrine of the Constitutional Court of the Republic of Lithuania in 1993–2009]”—a collection of the doctrinal provisions including 2010–2013—was published. This book carried on with the previously started work of systemising the provisions of the official constitutional doctrine laid down in acts of the Constitutional Court.
In November 2014, the Constitutional Court submitted an application to hold the 4th Congress of the WCCJ in Lithuania in 2017, when the 25th anniversary of the Constitution will be commemorated. On 21 March 2015, this application was granted.
On 3 April 2015, the Constitutional Court published its first annual report of its activities surveying the cases considered in 2014, the practice of admissibility of received petitions, the problems of the implementation of acts, and various topics regarding international cooperation and other activity.