Titulinė skaidrė
Salė
Vytis
Lt Fr

News

Content updated: 04-01-2021 12:44

The government resolution by which the Director of the State Food and Veterinary Service was released from his duties is not in conflict with the Constitution and the Law on the Government

11-12-2020

By its ruling passed today, the Constitutional Court has recognised that the government resolution (No 960) of 28 September 2016 on dismissing Jonas Milius from the position of the Director of the State Food and Veterinary Service is/was not in conflict with the Constitution and Item 7 of Paragraph 9 of Article 291 (wording of 3 June 2010) of the Law on the Government.

The Supreme Administrative Court of Lithuania, the petitioner, applied to the Constitutional Court after suspending an administrative case that was dealing with a dispute concerning the lawfulness of the government resolution of 28 September 2016 and that was examined subsequent to an appeal against the decision of the Vilnius Regional Administrative Court by which the complaint filed by Jonas Milius had been rejected.

The petitioner requested an investigation into the compliance of the government resolution of 28 September 2016 with Paragraphs 2 and 3 of Article 5 of the Constitution, the constitutional principles of responsible governance and a state under the rule of law, and Item 7 of Paragraph 9 of Article 291 of the Law on the Government in the aspect that, according to the petitioner, the Director of the State Food and Veterinary Service (Valstybinė maisto ir veterinarijos tarnyba, hereinafter referred to as the VMVT), Jonas Milius, was released from his duties on the basis of the unreasonable disapproval of his activity report.

The Constitutional Court has held that, under the Constitution, among others, Paragraphs 2 and 3 of Article 5 thereof, the constitutional principles of responsible governance and a state under the rule of law, in implementing their functions, institutions that exercise state power must not exceed the powers conferred on them by the Constitution and laws; when exercising those powers, the said institutions must, among others, adopt lawful and reasonable legal acts (they must be based on the provisions of higher-ranking legal acts, they must be clear and rationally reasoned, etc.).

The Constitutional Court has noted in previous constitutional justice cases that a person who has exercised his/her right, established in Paragraph 1 of Article 33 of the Constitution, to enter state service must be loyal to the state and work in such a way that his/her loyalty to the state and his/her credibility would not give rise to any doubts, that the citizens could reasonably have confidence in state servants/officials, that state service would be qualified and capable of performing the tasks assigned to it, among other things, in preventing the abuse of power and corruption in state service; under the Constitution, a state servant must properly fulfil his/her duties in accordance with the Constitution and law. In order that the citizens could reasonably have confidence in state officials, it is necessary to ensure public democratic control over the activity of the state officials and their accountability to society comprising the possibility of removing from office those state officials who violate the Constitution and law, who bring their personal interests or the interests of a certain group above the public interests, or who bring discredit on state authority by their actions.

In this ruling, the Constitutional Court noted that, under the Constitution, among others, Paragraph 1 of Article 33 and Item 3 of Article 94 thereof, the legislature, exercising certain discretion to regulate, in a differentiated manner, relationships within state service, may take into account the particularities of the legal status of government establishments and of their heads, among others, the particularities deriving from the competence of government establishments to implement state policies in the areas of governance that are entrusted to them, and may establish special grounds for the release of the heads of government establishments from duties in cases where the Government gives a negative assessment of the activity of the head of a government establishment or of the establishment directed by him/her in implementing state policies in the areas of governance that are entrusted to them.

The Constitutional Court has noted in its previous acts that, under the legal regulation laid down in the Law on the Government, among others, in Item 7 of Paragraph 9 of Article 291 thereof and Paragraph 11 of the same article, an activity report of the VMVT’s Director, as a state official heading this service, should be regarded as his/her accounting to the Government for the participation of the establishment headed by him/her in shaping and implementing state policy in the field of veterinary, and the assessment of this activity report in the aspect of shaping and implementing state policy in the field of veterinary is directly linked to the ability of this state official – the head of a government establishment – to perform his/her duties; Item 7 of Paragraph 9 of Article 291 of the Law on the Government consolidated one of the grounds on whose basis the head of a government establishment could be released from his/her duties – namely, in cases where the Government does not approve a report on the activity of the head of a government establishment after such a report has been presented by that head, i.e. where the Government gives a negative assessment of the activity of the head and/or the establishment headed by him/her.

Assessing the impugned government resolution of 28 September 2016 in the aspect whether the VMVT’s Director, Jonas Milius, was released from his duties on the basis of the reasonable disapproval of his activity report, the Constitutional Court noted that neither the Constitution, among others, Paragraphs 2 and 3 of Article 5 thereof, the constitutional principles of responsible governance and a state under the rule of law, nor Item 7 of Paragraph 9 of Article 291 of the Law on the Government gives rise to the requirement that the Government must indicate in a government resolution dismissing the head of a government establishment detailed reasons for adopting such a resolution, among others, detailed reasons for a negative assessment (by means of disapproving his/her activity report) of the activity of the head and/or the establishment headed by him/her. Such reasons may be apparent from the preparatory documents for the government resolution releasing the head of a government establishment from his/her duties having disapproved his/her activity report, among others, such reasons may be apparent from the factual circumstances surrounding the adoption of such a resolution, as well as from other evidence submitted to or collected by a court in the course of the proceedings, including in the Constitutional Court regarding the validity of such a government resolution.

It appears from the material of this constitutional justice case that the Government, disapproving the activity report of the VMVT’s Director, Jonas Milius, and at the same time negatively assessing his activities and those of the VMVT headed by him, took into account three important circumstances, which were known to the VMVT’s Director, Jonas Milius.

First, the conclusion presented by the Special Investigation Service (Specialiųjų tyrimų tarnyba, hereinafter referred to as the STT) to the Prime Minister on the corruption risk analysis in certain areas of activities carried out by the VMVT (hereinafter referred to as the Corruption Risk Analysis) provided the detailed information that, in the areas (defined in laws and other legal acts regulating the activities of the VMVT) of the supervision of food safety, food quality, food labelling, as well as of other mandatory requirements, the internal control of this supervision, investigations into infringements of those requirements, and the application of administrative measures to economic operators, there is a risk of corruption due to various corruption risk factors related to activities carried out by the VMVT, including the Vilnius Department of the VMVT; the Corruption Risk Analysis noted that the identified weaknesses in the activities of the VMVT can be considered as a factor limiting the effectiveness of the VMVT’s internal control system, can indicate that system’s inadequacy, allowing the VMVT’s inspectors to abuse their existing powers by applying disproportionate or discriminatory requirements to individual economic operators, and can determine other corruption risks.

Second, the activity report of the VMVT’s Director, Jonas Milius, generally acknowledges the shortcomings of corruption risk management identified in the Corruption Risk Analysis. However, in the draft Measures Plan on the Implementation of the Proposals Presented in the Corruption Risk Analysis, which was set out in this report, the VMVT’s Director, Jonas Milius, did not take into account all the proposals submitted by the STT, among others, did not take into account the proposals to strengthen internal control procedures in the Vilnius Department of the VMVT by ensuring that inspections of economic operators are of the same scope and non-discriminatory. The VMVT’s Director, Jonas Milius, was aware that the failure to take into account the proposals made in the Corruption Risk Analysis could lead to a negative assessment of his activity report, and thus of his activities and those of the VMVT (headed by him) in general.

Third, the Government took into account the information provided by the STT concerning the relationship between the VMVT’s Director, Jonas Milius, and Seimas member Petras Gražulis, in resolving at the request of the latter the operational problems of UAB Judex, among others, by organising a meeting of Seimas member Petras Gražulis and a representative from UAB Judex with the head of the Kaliningrad Regional Office of the Federal Service for Veterinary and Phytosanitary Surveillance of the Russian Federation. According to the Constitution, the free mandate of a member of the Seimas must not be used for his/her private benefit, the private benefit of his/her close relatives or other persons, or in their personal or group interests. Thus, the VMVT’s Director, Jonas Milius, should have been aware that, under the Constitution, Petras Gražulis, as a member of the Seimas, could not act in the interests of any enterprise; therefore, no requests of Seimas member Petras Gražulis incompatible with the constitutional status of a member of the Seimas, including his request for assistance in defending the business interests of UAB Judex, could be fulfilled. The VMVT’s Director, Jonas Milius, was aware that the discovery of his relationship with Seimas member Petras Gražulis in assisting him to represent the business interests of UAB Judex may be a reason to negatively assess his activity report, and thus of his activities and those of the VMVT (headed by him) in general.

Taking into account the factual circumstances established in this constitutional justice case, the Constitutional Court held that the Government had grounds to doubt the ability of the VMVT’s Director, Jonas Milius, to perform his duties properly in accordance with the Constitution and law, and his credibility in ensuring the functioning of the VMVT in order to properly implement the state policy in the area of state administration entrusted to the VMVT. Therefore, the Constitutional Court simultaneously stated that the Government had grounds to doubt the reliability of the activity report submitted by the VMVT’s Director, Jonas Milius, and to disapprove it, by negatively assessing his activities and those of the VMVT headed by him. Thus, contrary to what is maintained by the petitioner, there are no grounds for stating that the impugned government resolution of 28 September 2016, releasing the VMVT’s Director, Jonas Milius, from his duties upon disapproving the report of the activities of the VMVT’s Director, Jonas Milius, is not rationally reasoned and is unfounded. It should be mentioned that the Supreme Administrative Court of Lithuania, the petitioner, improperly fulfilled its constitutional duty to assess all the circumstances taken into account by the Government when disapproving the report of the activities of the VMVT’s Director, Jonas Milius, and, at the same time, negatively assessing his activities and those of the VMVT headed by him.

The Constitutional Court held that the Government, in adopting the resolution of 28 September 2016, paid regard to the Constitution, among others, Paragraphs 2 and 3 of Article 5 thereof, the constitutional principles of responsible governance and a state under the rule of law, as well as to the requirement that the Government, in the performance of its functions and the exercise of the powers conferred on it by the Constitution and laws, must adopt substantiated, i.e. clear and rationally reasoned, legal acts, and it did not violate the requirement of Item 7 of Paragraph 9 of Article 291 of the Law on the Government, according to which the head of a government establishment could be released from his/her duties namely when the Government disapproved the activity report submitted by that head of a government establishment, i.e. when it negatively assessed his/her activities and those of the establishment headed by him/her.

The Constitutional Court has emphasised that the Constitution, among others, the provision of Paragraph 3 of Article 5 thereof that state institutions serve the people, Paragraph 1 of Article 33 thereof, the constitutional concept of state service, as well as the constitutional principles of transparency and publicity of state service, give rise to the duty of the state to take all possible measures to prevent corruption and the abuse of power in state service. In this context, the impugned government resolution should be assessed as an effective means of preventing corruption, and the abuse of power, in state service by dismissing state officials whose credibility and suitability to hold office raise reasonable doubts and whose actions may bring discredit on state authority.

Thus, the Constitutional Court concluded that the government resolution of 28 September 2016 is both lawful and substantiated; therefore, it is/was not in conflict with Paragraphs 2 and 3 of Article 5 of the Constitution, the constitutional principles of responsible governance and a state under the rule of law, as well as with Item 7 of Paragraph 9 of Article 291 of the Law on the Government.