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On a limitation on the right of servicemen of professional military service to work in another job

The ruling of the Constitutional Court of the Republic of Lithuania of 4 November 2015

ON A LIMITATION ON THE RIGHT OF SERVICEMEN OF PROFESSIONAL MILITARY SERVICE TO WORK IN ANOTHER JOB

Summary

In this ruling, adopted in the case initiated by a group of members of the Seimas, Paragraph 7 (wording of 2 July 2013) of Article 36 of the Law on the Organisation of the National Defence System and Military Service, insofar as, under this paragraph, professional military servicemen may not work under an employment contract or be self-employed, except in cases provided for in this law, was held by the Constitutional Court to be not in conflict with the Constitution.

The Constitutional Court recalled the fact that some functions of the state are fulfilled, primarily or mainly, through civil state (and municipal) institutions, whereas others are performed through military and/or paramilitary state institutions; the content of each state function and circumstances of performing such functions lead to the situation that state institutions performing these functions differ in terms of their status and character of their activity. Under the Constitution, military, paramilitary, and security services are regarded as separate from civil service. Since the Constitution consolidates a differentiated notion of civil state institutions and military and paramilitary state institutions, this creates legal preconditions for establishing, by means of legal acts, a differentiated regulation of relations connected with the activities of civil state institutions and military and paramilitary state institutions, as well as for establishing such a legal status of persons working in civil and military and paramilitary state institutions that is distinguished by certain particularities.

In this ruling, the Constitutional Court held that the independence of the state and its territorial integrity and constitutional order are among the most important constitutional values, whose protection is a priority obligation of all the citizens of the state and its authorities; therefore, fulfilling the function of the protection of the state, which embraces the protection of constitutional values (as priority values), requires a separate institutional system that consists of military and paramilitary state institutions. Service in this system constitutes one of the forms of the constitutional institute of state service, as service to the State of Lithuania and its civil Nation; this form of the constitutional institute of state service also includes military service, which directly ensures the performance of the function of the protection of the state. Therefore, service in paramilitary and military institutions is subject to the basic constitutional requirements applicable to state service. At the same time, the Constitutional Court underlined that paramilitary services may not be equated with military institutions of the national defence system, as well as that the officials of paramilitary services may not be equated with the servicemen of the national defence system.

In implementing its discretion, consolidated in Paragraph 3 of Article 139 of the Constitution, to regulate the organisation of the national defence system, the legislature must establish by means of laws such a regulation of the organisation of this system, inter alia, the organisation of military service, that would ensure the protection of the constitutional values of the utmost importance—the independence, territorial integrity, and constitutional order of the state—and the adequate defence of the state against a foreign armed attack. The Constitution gives rise to the duty of the legislature to establish such a legal regulation under which the Republic of Lithuania would have a regular and well-organised army, capable of performing the constitutional functions of national defence. In regulating relations in connection with the national defence system, inter alia, military service, the legislature must take account of the geopolitical situation and other factors that have influence on national security; the legislature must also assess potential threats to national security, as well as long-term political processes, the participation of the state in the organisations of mutual assistance between states, and the international obligations of the state in security missions, peacekeeping missions, etc.

The constitutional mission of military service, including professional military service, to ensure the preparedness to defend the state against a foreign armed attack, as well as to ensure the defence of the state, implies certain specific particularities characteristic of this service, as, for instance: the necessity to constantly maintain combat readiness and the respective special regime governing the performance of service (the particularities related to the period of military service, also to the uninterrupted continuity and mobility of military service; the relations of strict hierarchical subordination among servicemen; the system of military ranks; the specificity of disciplinary responsibility); the special legal status of servicemen, which includes certain specific powers (related, among other things, to the use of military force), the specific requirements that apply to servicemen performing this service (requirements related to their loyalty to the State of Lithuania, their age, state of health, education, physical fitness, moral character, etc.), certain limitations and prohibitions, as well as special social and other guarantees; and a special legal regulation established by means of the legal acts (statutes) providing for the procedure and conditions applicable to the performance of military service.

In the ruling, the Constitutional Court held that, in regulating limitations on the activity of professional military servicemen, the legislature is obliged to pay regard to Article 141 of the Constitution, which expressis verbis consolidates certain special limitations on the activity of servicemen (servicemen may not be members of the Seimas or members of municipal councils, may not hold any elective or appointive office in the civil state service, participate in the activities of any political parties or political organisations), as well as to Paragraph 1 of Article 33 of the Constitution, which gives rise to the limitations on the work of professional military servicemen other than that specified in Article 141 of the Constitution (these limitations must be such that would preclude conflicts between public and private interests in professional military service, using service in pursuit of self-interest, interfering with the performance of the duties of professional military servicemen, undermining or discrediting the authority of this service, as well as that would preclude the work of professional military servicemen in those enterprises, establishments, or organisations with regard to which they hold authoritative powers or the powers to carry out control or supervision, or take any other decisions).

The constitutional mission of military service, the particularities of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security and related to the fulfilment of international obligations undertaken by the state, also imply the discretion of the legislature to establish other limitations on the activity of professional military servicemen.

While assessing the impugned provision of the Law on the Organisation of the National Defence System and Military Service, which consolidates the prohibition precluding professional military servicemen from working under an employment contract or from being self-employed, except in cases provided for in this law, the Constitutional Court held that the legislature, in imposing this prohibition, had paid regard to the limitations on the activity of professional military servicemen, as consolidated in Article 141 of the Constitution and derived from Paragraph 1 of Article 33 of the Constitution; in addition, the legislature had properly implemented the right to establish, at its discretion, other limitations on the said activity, which are implied by the constitutional mission of military service, the exclusivity of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security and to the fulfilment of the international obligations undertaken by the state. Thus, as assessed by the Constitutional Court, the prohibition in question is constitutionally well founded and justifiable; it does not violate the human right, consolidated in Paragraph 1 of Article 48 of the Constitution, to freely choose a job or business, or the right of citizens, consolidated in Paragraph 1 of Article 33 of the Constitution, to enter on equal terms the state service of the Republic of Lithuania.

At the same time, the Constitutional Court emphasised that the legislature, in implementing its discretion to establish other limitations on the activity of professional military servicemen, including the prohibition on work under an employment contract or on self-employment, must establish such a legal regulation governing the work remuneration of professional military servicemen that would ensure the possibility for these servicemen to perform their constitutional obligation fully and with dignity.

The Constitutional Court also drew attention to the fact that work under an employment contract and self-employment constitute activity forms that are similar in terms of their continuity and the aim of persons engaged in these activities to receive income, but differ in their character; employment relations are characterised by the subordination of an employee with regard to the employer, whereas self-employment is characterised by independence. Therefore, in implementing its discretion to establish other limitations on the activity of professional military servicemen, the legislature may take into account, among other things, the particularities of these types of activity.