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THE CONSTITUTIONAL COURT OFTHE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 14, 251, 26, 30, 33,
34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and 73 ofthe Republic of Lithuania Law on Courts with the
Constitution of the Republic of Lithuania
Vilnius, 21 December 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarainas, Egidijus Kris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkeviius, Stasys Staiokas, and Teodora Staugaitien,
with the secretary of the hearing-Daiva Pitrnait,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Juozas Bernatonis
and eslovas Jurnas, both are Seimas members,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Jurgis Orlauskas, a senior consultant
to the Law Department of the Chancery of the Seimas, and thevice-minister of justice Gintaras vedas,pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 24November 1999 in its public hearing conducted the investigation
of Case No. 16/98 subsequent to the petition submitted to the
Court by the petitioner-a group of members of the Seimas of the
Republic of Lithuania-requesting to investigate if Articles 14,251, 26, 30, 33, 34, 36, 40, 51, 56, 58, 59, 66, 69, 691, and
73 of the Republic of Lithuania Law on Courts were inconformity with Part 2 of Article 5, Item 11 of Article 84,Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 31 May 1994, the Seimas of the Republic of Lithuania
adopted the Republic of Lithuania Law on Courts (OfficialGazette Valstybs inios, 1994, No. 46-851; hereinafter
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referred to as the Law) which subsequently was amended andsupplemented. The petitioner-a group of Seimas members-requests
to investigate if certain norms of the said law are in
conformity with Part 2 of Article 5, Item 11 of Article 84,Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution.
II
The request of the petitioner is based on the following
arguments.The norms of Articles 14, 251, 26, 30, 33, 34, 36, 40, 51,
56, 58, 59, 66, 69, 691, and 73 of the Law creates direct and
indirect opportunities for the Minister of Justice to interfere
with the activities of courts. Such provisions contradict the
provision of Article 109 of the Constitution whereby, while
administering justice, judges and courts shall be independent.
In the opinion of the petitioner, the provision of Part 2
of Article 33 of the Law whereby the judges of district and
regional courts shall be appointed by the President of the
Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges, that of Part 3 of Article
33 whereby chairpersons of district and regional courts shall
be appointed from among the appointed judges by the President
of the Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges, that of Part 4 of the
same article whereby deputy chairpersons of district andregional courts or court division chairpersons shall be
appointed by the Minister of Justice, that of Part 2 of Article
34 whereby judges of the Court of Appeal and from them-itschairperson shall be appointed by the President of the Republic
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges and with the approval
of the Seimas, that of Part 3 of Article 34 whereby divisionchairpersons of the Court of Appeal from among the appointed
judges shall be appointed by the Minister of Justice from theappointed judges on the proposal of the Chairperson of thiscourt, contradict the norms of Part 2 of Article 5, Item 11 of
Article 84 and Part 2 of Article 109 of the Constitution.
The petitioner is also of the opinion that the norms ofParts 5, 6, 7 and 8 of Article 56 of the Law whereby the judges
of district and regional courts and those of the Court of
Appeal, as well as chairpersons of the said courts, shall bedismissed from office by the President of the Republic on the
proposal of the Minister of Justice, and that deputy and
division chairpersons of the said courts shall be dismissedfrom office by the Minister of Justice on the recommendation of
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the Director of the Department of Courts, contradict theaforesaid norms of the Constitution.
The Constitution does not provide for the proposal of the
Minister of Justice regarding appointment and dismissal ofjudges. The mandatory proposal of the Minister of Justice as
established by these norms restricts the powers of the
President of the Republic. Part of the powers of the Presidentof the Republic are taken over by the Minister of Justice. This
violates the principle of subordination established in Article
96 of the Constitution whereby the ministers, in directing thespheres of administration entrusted to them, shall be
responsible to the President of the Republic. Part 5 of Article
112 of the Constitution provides that a special institution of
judges provided by law shall submit recommendations to the
President concerning the appointment of judges, as well as
their promotion, transference, or dismissal from office.
Because of the disputed norms of the Law, in reality such an
institution of judges submits recommendations to the Minister
of Justice but never to the President of the Republic.
The petitioner maintains that the right of the Minister of
Justice to submit the candidature for the Prosecutor General as
established in Part 1 of Article 66 of the Law might be
assessed as interference of the executive with the activity of
courts. The norm of this article granting the powers of the
Legal Committee of the Seimas to submit the candidature of the
Prosecutor General to the Seimas is also disputable as therebythe powers of the Seimas to appoint and dismiss chief officers
of state institutions as established in Item 5 of Article 67 of
the Constitution are restricted.The petitioner is of the opinion that the provisions of
Part 2 of Article 14, Parts 1 and 2 of Article 251, Part 1 of
Article 26, Part 1 of Article 30, Part 1 of Article 36, Article
40, Part 3 of Article 51, Part 1 of Article 58, Part 4 ofArticle 59, Part 2 of Article 69 and Part 2 of Article 73 of
the Law create direct and indirect opportunities for theMinister of Justice to interfere with the activity of courts,therefore they contradict Part 2 of Article 109 of the
Constitution.
In the opinion of the petitioner, the provision of Article691 of the Law whereby the Department of Courts shall act under
the Ministry of Justice means that the said department becomes
a constituent part of the executive.The petitioners point out that most of the said norms of
the Law contradict Part 2 of Article 5, Item 11 of Article 84,
Part 2 of Article 109, Article 112 and Part 1 of Article 114 ofthe Constitution.
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III
In the course of the preparation of the case for judicial
investigation, an explanation of Dr. G. vedas, a vice-ministerof justice, was received. It is pointed out therein that
neither the Constitution nor the Law on the Procedure for the
Enforcement of the Constitution provides for the ways by whichthe Seimas might implement the reform of courts, therefore the
Seimas may freely choose the ways and procedure of
implementation of the reform. Before he appoints judges, theMinister of Justice, first of all finds out if the candidature
of the person conforms to the requirements raised for a judge.
On receiving a positive conclusion, the minister submits the
proposal to the President of the Republic concerning
appointment of this person as a judge. Then the President of
the Republic may ask for advice from the Council of Judges
concerning the appointment of this person as a judge. After the
advice has been given to him, the President of the Republic
adopts a decision regarding the appointment of the person as a
judge. An analogous procedure is applied in cases when
chairpersons of courts are appointed or when judges are
dismissed from office. The President of the Republic may reject
the proposal of the Minister of Justice even without any
consultation with the Council of Judges. He is also not
obligated to appoint a person as a judge or the chairperson of
a court even in cases when the Council of Judges approves ofsuch an appointment. The norms of the Law regarding appointment
and dismissal of judges are in compliance with the norms of the
Constitution. It is pointed out in the explanation of theministry that that in the Constitutional Court decision of 30
December 1994 the functions of the judge and the chairperson
were singled out and it was interpreted therein that the
independence guarantees regarding termination of powers areapplicable "only to the Supreme Court judges but not to the
Chairperson or Deputy Chairperson of this Court". The proposalof the Minister of Justice does not violate the principle ofsubordination established in Article 96 of the Constitution,
however it is the obligation of the Minister of Justice to
submit the proposal that implements the constitutionalprinciples of subordination of ministers and their
responsibility before the President of the Republic.
It is maintained in the explanation that the petitionerinterprets the constitutional provision prohibiting "persons
and institutions to exercise the powers of the President of the
Republic" in an unreasonably extended manner as the proposal ofthe Minister of Justice regarding appointment or dismissal of
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judges is neither an act of appointment nor that of dismissalof a judge neither by its content nor its form. The statement
of the petitioner that "in reality this special institution of
judges submits recommendations to the Minister of Justice butnever to the President of the Republic" contradicts the reality
as the request for the recommendation is submitted to the
Council of Judges by the President of the Republic but not bythe Minister of Justice, and the Council of Judges expresses
its opinion for the President of the Republic.
The provision of Part 1 of Article 66 of the Law on theprocedure of the appointment of the Prosecutor General is in
compliance with Item 5 of Article 67 of the Constitution. In
its ruling of 1 October 1993, the Constitutional Court noted
that "the Seimas has the right to establish the procedure for
its activities by its Statute. The Seimas is free to make
decisions within the limits established by the Constitution of
the Republic of Lithuania". It is provided for in the Statute
of the Seimas that the directions of activities and the powers
of the Seimas committees shall be established by the Statute
and other laws, therefore the obligation of the Legal Committee
of the Seimas to submit a candidature of the Prosecutor General
to the Seimas as established by the said article is in
compliance with the Statute of the Seimas. Thus Part 1 of
Article 66 of the Law on Courts is in compliance with Item 5 of
Article 67 and Article 76 of the Constitution.
The independence of judges and courts is guaranteed onlyin the phase of implementation of justice. In the
constitutional justice of Lithuania the independence of judges
and courts and the content of its guarantees has extensivelybeen discussed. The Constitution establishes only the main
functions of state powers and the principles of their
activities. Its systematic analysis permits to assert that the
separation of powers may not be comprehended in its absolutesense. In this way a balance between different state powers is
established whose guarantee is cooperation of powers and theirindependence in the course of performance of theirconstitutional functions. It is concluded in the explanation
that the norms of the articles of the Law pointed out by the
petitioner wherein the competence of the Minister of Justice isprovided for are in conformity with the Constitution.
IVIn the course of the preparation of the case for judicial
investigation, written explanations of Assoc. Prof. Dr. V.
Nekroius, Vice-dean of the Law Faculty of Vilnius University,and Assoc. Prof. Dr. T. Birmontien, Head of the Constitutional
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Law Department of the Public Administration Faculty of the LawAcademy of Lithuania, were received.
In the explanation of V. Nekroius it is maintained that
the disputed norms of the Law are in compliance with theConstitution.
In the opinion of T. Birmontien, the disputed norms of
Articles 33 and 34 of the Law, Part 3 of Article 51, Part 4 ofArticle 59, the norm of Part 1 of Article 66 and the norm of
Article 73 of the Law contradict the Constitution.
V
At the Constitutional Court hearing the representatives of
the petitioner J. Bernatonis and . Jurnas virtually
reiterated the arguments set forth in the request of the
petitioner.
VI
At the Constitutional Court hearing the representative of
the party concerned J. Orlauskas explained that the functions
of the Ministry of Justice in the sphere of the control over
judges' conduct should not be assessed as a violation of the
independence of judges. The representative of the party
concerned G. vedas virtually reiterated the arguments set down
in the explanations of the Ministry of Justice to the
Constitutional Court.
In the opinion of the representatives of the partyconcerned, the norms of the Law are in compliance with the
Constitution.
The Constitutional Court
holds that:
The petitioner-a group of Seimas members-requests toinvestigate whether Articles 14, 251, 26, 30, 33, 34, 36, 40,
51, 56, 58, 59, 66, 69, 691, and 73 of the Law are incompliance with Part 2 of Article 5, Item 11 of Article 84,Part 2 of Article 109, Article 112 and Part 1 of Article 114 of
the Constitution.
In the argumentative part of the petition the petitionerspecifies his request and points out that only individual parts
or certain norms of the said articles of the Law contradict the
Constitution. The Constitutional Court will investigate thecompliance of the individual parts and the norms set down
therein with the Constitution, while taking account of the
arguments set forth in the petition.In addition, it needs to be noted that even though the Law
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was amended and supplemented later, the same wordings of thenorms and provisions whose compliance with the Constitution was
challenged by the petitioner at the Constitutional Court remain
in force.
I
1. The petitioner contests the compliance of the norms ofthe Law regulating relations of courts with other state
institutions or officials with the Constitution. The
constitutionality of these norms may be assessed only aftertaking account of the purpose and place of courts in the system
of institutions of state power established in the Constitution.
Under the Constitution, the state power is organised and
implemented on the basis of the principle of separation of
powers. This principle means that the legislature, the
executive and the judiciary are separate, sufficiently
independent and that there must be a balance between them.
Every institution of power enjoys competence according to its
purpose. The concrete content of such competence depends on the
fact as for to which state power this institution belongs, its
place among other state institutions, the relation of its
powers with those of other institutions of state power.
Part 1 of Article 109 of the Constitution provides that in
the Republic of Lithuania, the courts shall have the exclusive
right to administer justice. Administration of justice is the
function of courts and it determines the place of the judiciaryin the system of institutions of state power and the status of
judges. Neither any other state institution nor any other state
official may exercise this function.2. Part 2 of Article 109 of the Constitution provides:
"While administering justice, judges and courts shall be
independent."
The independence of judges and courts is one of essentialprinciples of a democratic state. The role of the judiciary in
such a state is that, while administering justice, the courtsmust ensure the implementation of law expressed in theConstitution, the laws and other legal acts, to guarantee the
rule of law and to protect human rights and freedoms.
It needs to be noted that the independence of judges andcourts is not an end in itself: this is a necessary condition
of protection of human rights and freedoms. Part 1 of Article
30 of the Constitution provides that any person whoseconstitutional rights or freedoms are violated shall have the
right to appeal to court. Part 2 of Article 31 of the
Constitution provides for the right for every indicted personto a fair and public hearing by an independent and impartial
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court. Therefore, such independence is not a privilege, but oneof the principal duties of judges and court, ensuing from the
human right to an impartial arbiter in a dispute guaranteed by
the Constitution, must necessarily be the criterion guiding theassessment of the independence of judges and court
(Constitutional Court ruling of 6 December 1995).
3. Taking account of the strife for an open, just, andharmonious civil society and law-governed state entrenched in
the Preamble to the Constitution, Article 5 and the norms of
other articles of the Constitutions establishing the separationof powers, it is possible to distinguish two inseparable
aspects of the principle of the independence of judges and
courts.
This principle, first of all, means the independence of
judges and courts when they administer justice. Under Article
109 of the Constitution, while investigating cases, judges
shall be independent and obey only the law. Part 1 of Article
114 of the Constitution provides that institutions of state
power and administration, members of the Seimas and other
officers, political parties, 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 for by the law. The procedural independence of judges
is a necessary condition of impartial and fair investigation of
a case.
On the other hand, judges and courts are not sufficientlyindependent if the independence of courts as the system of the
institutions of the judiciary is not ensured. According to the
principle of separation of powers, all powers are autonomous,independent, and capable of counterbalancing each other. The
judiciary, being independent, may not be dependent on the other
powers also because of the fact that it is the only power
formed on the professional but not political basis. Only beingautonomous and independent of the other powers, the judiciary
may implement its function, which is administration of justice.The all-sufficiency and independence of the judiciarypresupposes its self-government. The self-government of the
judiciary also includes organisation of the work of courts and
the activities of the professional corps of judges.The organisational independence of courts and their
self-government are the main guarantees of actual independence
of the judiciary. A constitutional duty of the otherinstitutions of power is to respect the independence of courts
established in the Constitution. It needs to be noted that the
activities of courts are guaranteed by the Constitution, andthe laws and other legal acts that are in conformity with the
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Constitution. A duty of the state is to create proper workconditions to courts. However, this does not mean that in the
course of establishing particular powers of the other
institutions of power as regards their relations with thejudiciary it is permitted to deny the separation of powers
established in the Constitution and the essence of the
judiciary as all-sufficient power which acts independently fromthe other powers.
While ensuring the independence of judges and courts, it
is of much importance to separate the activity of courts fromthat of the executive. The Constitution prohibits that the
executive interfere with administration of justice, exert any
influence on courts or assess the work of courts regarding
investigation of cases, let alone give instructions as to how
justice must be administered. Supervision of courts and
application of disciplinary measures to judges must be
organised in such a manner so that the actual independence of
judges might not be violated.
Under the Constitution, the activity of courts is not and
may not be considered an area of administration ascribed to any
institution of the executive. Only the powers designated to
create conditions for the work of courts may be granted to
institutions of the executive. For their activities the courts
are not accountable to any other institutions of power nor any
officials. It is only an independent institutional system of
courts that may guarantee the organisational independence ofcourts and procedural independence of judges.
The material basis of the organisational independence of
courts is their financial independence of any decisions of theexecutive. It needs to be noted that the financial independence
of courts is ensured by such legal regulation when finances for
the system of courts and every court are allocated in the state
budget approved by the law. The guarantee of the organisationalindependence of courts is one of essential conditions to ensure
human rights.4. The judge is also obligated to be independent by hisoath which he must make before taking office under Part 6 of
Article 112 of the Constitution. The judge swears allegiance to
the Republic of Lithuania, swears to administer justice onlypursuant to laws, to defend human rights, freedoms and
legitimate interests, always act honourably, humanely and never
let his behaviour cause damage to the title of a judge.Under Article 115 of the Constitution, judges shall be
dismissed from office according to the procedure established by
law, in cases when their behaviour discredits their position asa judge, and when judgment imposed on them by court comes into
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force. Articles 74 and 116 of the Constitution also providethat for gross violation of the Constitution, breach of oath,
or upon the disclosure of the commission of felony, the Seimas
may remove from office the Chairperson and judges of theSupreme Court, as well as the Chairperson and judges of the
Court of Appeal, in accordance with the procedure for
impeachment. The behaviour of a judge connected with hisperformance of his immediate duties, as well as his activity
not linked with his duties, may not cause any doubts as for his
independence and impartiality.Another guarantee of proper administration of justice by
judges is their qualification: only persons who have life
experience and high legal qualification may be appointed as
judges. They must be of irreproachable reputation.
This means that special professional and ethical
requirements are raised to judges. The judge must feel greatly
responsible for the way he administers justice, i.e. the way he
performs the duty established to him by the Constitution.
5. It needs to be noted that the principle of independence
of judges is also established in a number of international
acts: Universal Declaration of Human Rights, Convention for the
Protection of Human Rights and Fundamental Freedoms, Basic
Principles on the Independence of the Judiciary endorsed by the
General Assembly of the United Nations, Recommendation on the
Independence, Efficiency and Role of Judges adopted on 13
October 1994 by the Committee of Ministers of the Council ofEurope, Universal Charter of the Judge of 17 November 1999 etc.
The principle of independence of judges and courts is
established in all the constitutions of democratic states.6. The principle of independence of judges and courts
established in Part 2 of Article 109 of the Constitution is
linked with the provisions of Article 6 of the Convention for
the Protection of Human Rights and Fundamental Freedoms whichprovide for the right of everyone to a fair and public trial by
an independent and impartial tribunal. The European Court ofHuman Rights, while investigating cases regarding violations ofArticle 6 of the Convention, distinguishes objective and
subjective elements of the right of to a fair and public trial
by an independent and impartial tribunal. The former are ofcrucial importance from the standpoint of the case at issue.
They are the guarantee of the separation of powers and
corresponding regulation of interrelations between institutionsof power. An analysis of the case-law practice of the European
Court of Human Rights permits to assert that control over the
activities of courts and judges or the cases when non-judicialstructures exert influence on courts are considered violations
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of Article 6 of the Convention. For example, in its judgment of24 November 1994 in the case Beaumartin vs. France (Series A,
No. 296-B), the European Court of Human Rights held that only
an institution that has full jurisdiction and satisfies anumber of requirements, such as independence of the executive
and also of the parties, merits the designation "tribunal"
within the meaning of Paragraph 1 of Article 6 of theConvention. Such a conclusion was also based on some other
judgments delivered by the European Court of Human Rights.
It needs to be noted that in the case-law of the EuropeanCourt of Human Rights also such factors as an opportunity for
the other branches of power, especially for the executive, to
give instructions to courts or cause transference of a judge to
another post in case he does not follow certain directions, as
well as conditions of remuneration of judges and a possibility
for the executive to exert direct or indirect influence on
courts, are regarded as factors exerting direct and indirect
influence on courts.
7. The legal status of judges and courts is also to be
attributed to the guarantees of independence of judges and
courts. According to the duties performed by him, the judge may
not be ascribed to civil servants. No one may demand that he
followed a certain political guideline. The case-law court
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 andlaws.
In its ruling of 6 December 1995, the Constitutional Court
held that "according to the detailed interpretation of theindependence of judges and the court established in Part 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 thesafeguards guaranteeing the independence of judges: a) those
guaranteeing the security of tenure, b) guaranteeing personalimmunity of a judge, and c) those securing social (material)guarantees of judges".
In order to ensure the immunity of powers of judges,
Article 115 of the Constitution provides that judges may bedismissed from offices only in cases provided for in the
Constitution. The security of tenure is important so that the
judge remains independent regardless of what political forcesare in power, and he must never conform to a possible change of
power of political forces.
In order to guarantee the personal immunity of a judge, itis provided for in Part 2 of Article 114 of the Constitution
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that judges may not have legal actions instituted against them,nor may they be arrested or restricted of personal freedom
without the consent of the Seimas, or in the period between
sessions of the Seimas, of the President of the Republic ofLithuania. Articles 74 and 116 of the Constitution provide that
for gross violation of the Constitution, breach of oath, or
upon the disclosure of the commission of felony, the Seimas mayremove from office the Chairperson and judges of the Supreme
Court, as well as the Chairperson and judges of the Court of
Appeal, in accordance with the procedure for impeachment.The guarantees of social (material) nature of the
principle of independence of judges as established in Part 2 of
Article 109 of the Constitution are of no less importance. They
mean an obligation of the state to ensure social (material)
maintenance to judges which would be in conformity with the
status of judges when they are in office, as well as after
expiration of office. For instance Article 13 of the 17
November 1999 Universal Charter of the Judge provides that the
judge must receive sufficient remuneration to secure true
economic independence; the remuneration must not depend on the
results of the judge's work and must not be reduced during his
or her judicial service.
It needs to be noted that, disclosing the content of the
constitutional principle of independence of judges and courts,
in its ruling of 6 December 1995 the Constitutional Court held
that "any attempts to reduce the salary or other socialguarantees of a judge or cut the budget of the judiciary are
interpreted as infringement on the judicial independence".
The assessment of the system of guarantees of independenceof judges and courts permits to assert that they are closely
interrelated. It is impossible to assess independence of judges
and courts according to a single even though important element,
therefore it is universally recognised that in case anyguarantee of independence of judges and courts is violated,
administration of justice might be damaged, there might appeara danger that neither human rights and freedoms will be ensurednor the rule of law be guaranteed.
Alongside, the Constitutional Court notes that the system
of guarantees of independence of judges and courts does notcreate any pre-conditions on the grounds of which judges could
evade proper fulfilment of their duties, investigate cases in
an improper manner, act unethically with the people taking partin the case, violate human rights and dignity. Judges must
protect the honour and prestige of their profession. Therefore
the system of self-regulation and self-government of thejudiciary must ensure that judges perform their duties properly
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and that every unlawful or unethical action of a judge beproperly assessed.
8. The independence of judges and courts is indivisible.
When the activity of courts is regulated by the law, it is notpermitted that the concept of the Judiciary, which is
established in Article 5 and other articles of the Constitution
as an independent and all-sufficient state power, be denied.Otherwise, the protection of human rights and freedoms
entrenched in the Constitution would not be secured.
While investigating this case, the Constitutional Courtwill take account of both aspects of the principle of
independence of judges and courts: first, the independence of
judges and courts in the area of administration of justice;
second, the independence of courts as institutions in the area
of implementation of judicial power.
II
On the compliance of Parts 2, 3 and 4 of Article 33, Parts
2 and 3 of Article 34 and Parts 5, 6, 7 and 8 of Article 56 of
the Law with the Constitution.
1. Parts 2, 3 and 4 of Article 33 of the Law provide:
"The judges of district and regional courts shall be
appointed by the President of the Republic on the proposal of
the Minister of Justice, as recommended by the Council of
Judges.
Chairpersons of district and regional courts shall beappointed from among the appointed judges by the President of
the Republic on the proposal of the Minister of Justice, as
recommended by the Council of Judges.Deputy chairpersons of district and regional courts or
court division chairpersons, as well as mortgage judges of
court mortgage divisions, shall be appointed from among the
appointed judges by the Minister of Justice on the proposal ofthe Chairperson of the respective court."
Parts 2 and 3 of Article 34 of the Law provide:"Judges of the Court of Appeal and from them-itschairperson shall be appointed by the President of the Republic
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges and with the approvalof the Seimas.
Division chairpersons of the Court of Appeal shall be
appointed by the Minister of Justice from the appointed judgeson the proposal of the Chairperson of this court."
Parts 5, 6, 7 and 8 of Article 56 of the Law provide:
"The Chairperson and other judges of the Court of Appealshall be dismissed from office by the President of the Republic
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on the proposal of the Minister of Justice and on therecommendation of the Council of Judges, with the consent of
the Seimas.
Division chairpersons of the Court of the Appeal shall bedismissed from office by the Minister of Justice on the
proposal of the Director of the Department of Courts, or on his
own initiative.The chairpersons of other courts and other judges shall be
dismissed form office by the President of the Republic on the
proposal of the Minister of Justice, as recommended by theCouncil of Judges.
Deputy chairpersons or court division chairpersons of
other courts, as well as mortgage judges of district court
mortgage divisions shall be dismissed form office by the
Minister of Justice on the proposal of the Director of the
Department of Courts, or on his own initiative."
The petitioner is of the opinion that the norms of Parts 2
and 3 of Article 33, Part 2 of Article 34 and those of Parts 5
and 7 of Article 56 of the Law establishing the proposal of the
Minister of Justice regarding appointment and dismissal of
judges, chairpersons, deputy chairpersons and court division
chairpersons of respective courts restrict the powers of the
President of the Republic and contradict Part 2 of Article 5,
Item 11 of Article 84 and Part 2 of Article 109 of the
Constitution.
The petitioner also doubts whether the right of theMinister of Justice to appoint and dismiss deputy chairpersons,
court division chairpersons of respective courts as established
in Part 4 of Article 33, Part 3 of Article 34 and Parts 6 and 8of Article 56 of the Law is in conformity with the aforesaid
articles of the Constitution.
Taking account of the motives set down in the request of
the petitioner, the Constitutional Court will investigate thecompliance of the disputed norms only from the aspect pointed
out by the petitioner.2. Part 2 of Article 109 of the Constitution providesthat, while administering justice, judges and courts shall be
independent.
It needs to be noted that while establishing the procedurefor appointment, promotion of judges or that of their
transference, i.e. regulating questions of their professional
career, it is not permitted that the principle of independenceof judges and courts be violated.
3. Item 11 of Article 84 of the Constitution provides that
the President of the Republic shall propose Supreme Court judgecandidates to the Seimas, and, upon the appointment of all the
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Supreme Court judges, recommend from among them the SupremeCourt Chairperson to the Seimas; appoint, with the approval of
the Seimas, Court of Appeal judges, and from among them-the
Court of Appeal Chairperson; appoint judges and chairpersons ofdistrict and local district courts, and change their places of
office; in cases provided by law, propose the dismissal of
judges to the Seimas.The norms of Item 11 of Article 84 of the Constitution
establishing the powers of the President of the Republic in the
sphere of appointment and dismissal of judges are linked withPart 5 of Article 112 of the Constitution wherein it is
prescribed that a special institution of judges provided by law
shall submit recommendations to the President of the Republic
concerning the appointment of judges, as well as their
promotion, transference, or dismissal from office. Under
Article 30 of the Law, these functions are performed by the
Council of Judges.
Thus the powers of the President of the Republic in the
sphere of formation of the judiciary are entrenched in Item 11
of Article 84 of the Constitution. It is an important element
of the constitutional status of the Head of State. Any change
or restriction of the powers of the President of the Republic
in this area, as well as any establishment of such a procedure
for the implementation of these powers when the actions of the
President of the Republic would be bound by decisions of the
institutions or officials that are not provided for in theConstitution, would mean a change of the constitutional
competence of the President of the Republic.
4. Part 2 of Article 5 of the Constitution provides: "Thescope of powers shall be circumscribed by the Constitution."
An important constitutional principle is enshrined in this
norm which must be taken account of when the powers of
institutions of state power both in the area of relationsbetween state power and individuals and that of interrelations
between institutions of state power are established. From thisaspect interpreting the principle established in Part 2 ofArticle 5 of the Constitution, in its ruling of 3 June 1999 the
Constitutional Court held that this constitutional principle
"means that in cases when the powers of a concrete branch ofpower are directly established in the Constitution, then no
institution may take over these powers, while an institution
whose powers are defined by the Constitution may neithertransfer nor refuse these powers. Such powers may neither be
changed nor restricted by the law." It is necessary that such
requirements be followed in order to ensure the harmony offunctioning of institutions of state power.
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The Constitutional Court notes that while assessing thecompliance of the disputed norms of the Law with Part 2 of
Article 5 of the Constitution, the conformity or non-conformity
of the said norms of the Law with Item 11 of Article 84 of theConstitution must be considered.
5. In the established procedures of appointment and
dismissal of judges the proposal of the Minister of Justiceregarding appointment and dismissal of judges is provided for.
The petitioner questions its compliance with the Constitution,
therefore it is necessary to ascertain the content of theproposal, as a legal institute, made by the Minister of
Justice.
Analysing the powers of the Minister of Justice in the
procedure of appointment of judges, one is to note that under
Part 1 of Article 33 of the Law candidates to judges of
district and regional courts and their chairpersons shall be
designated by the Minister of Justice on the proposal of the
Director of the Department of Courts. The Council of Judges
chooses one candidature from among them and recommends that the
President of the Republic appoint him as a judge.
Part 2 of Article 33 of the Law provides that these judges
shall be appointed by the President of the Republic on the
proposal of the Minister of Justice, as recommended by the
Council of Judges.
Thus in the said parts of Article 33 of the Law a
respective procedure for appointment of judges is established.Comparing the norms of Parts 1 and 2 of this article, it is
possible to draw a conclusion that the concepts "candidates to
judges shall be designated by the Minister of Justice"and "proposal of the Minister of Justice" are not identical.
The contents of these notions are not the same.
The proposal of the Minister of Justice provided for in
the norms of Articles 33 and 34 of the Law is officiallyregistered by a corresponding act. Such a proposal of the
Minister of Justice gives rise to legal effects. In case thereis not any proposal of the Minister of Justice, the Presidentof the Republic may not appoint an individual as a judge. Under
the Law, the proposal of the Minister of Justice is a necessary
condition of implementation of the powers of the President ofthe Republic in the area of appointment of judges. The right of
the Minister of Justice to give proposals to the President of
the Republic regarding dismissal of respective judges fromoffice as provided for in the norms of Parts 5 and 7 of Article
56 of the Law acquires the same meaning.
Alongside, it needs to be noted that the legislator isentitled to establish as to what subjects shall choose
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candidatures of judges for the President of the Republic. Thisfunction may be ascribed to the Minister of Justice, however
the right of the Minister of Justice to choose candidatures of
judges is not binding to the President of the Republic.Thus, not only the right of the Minister of Justice to
nominate candidatures of judges but also that to submit the
proposal to the President of the Republic regarding theirappointment are established in the disputed norms of the Law.
An analogous procedure for appointment of judges of the Court
of Appeal and its Chairperson is established in Article 34 ofthe Law. Candidatures of judges of the Court of Appeal and its
Chairperson are chosen by the Minister of Justice under the
same procedure. These judges and the Chairperson from among
them are appointed by the President of the Republic on the
proposal of the Minister of Justice on the recommendation of
the Council of Judges.
The norms of Parts 5 and 7 of Article 56 of the Law
establishing that judges of respective courts are dismissed
from office on the proposal of the Minister of Justice are to
be assessed in the same manner.
6. As mentioned, the procedure of appointment of judges
established in the Law may not violate the independence of the
judiciary. Alongside, this procedure may not violate the
balance of state powers (in the case at issue this is that
between the President of the Republic and the Judiciary) as
established in Article 5 of the Constitution.While investigating whether the norms of the parts of
articles of the Law pointed out in the petition which establish
the competence of the Minister of Justice in the formation ofcourts, and decision of questions of internal organisation of
courts, are in conformity with the Constitution, it is
important to establish the legal status of a special
institution of judges provided for in Part 5 of Article 112 ofthe Constitution.
Taking account of the procedure of formation of courtsestablished in the Constitution, as well as the constitutionalregulation of the relations of the President of the Republic
with the special institution of judges, one is to conclude that
the special institution of judges pointed out in Part 5 ofArticle 112 of the Constitution must give recommendation to the
President of the Republic concerning all the questions of
appointment of judges, those of their professional career, aswell as those of their dismissal from office. The
recommendation of this institution gives rise to legal effects:
in case there is not a recommendation of this institution, thePresident of the Republic may not adopt decisions on
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appointment, promotion, transference of judges or those ontheir dismissal from office.
Thus, by the Constitution, the special institution of
judges not only helps the President of the Republic to formcourts but it also serves as a counter-balance to the President
of the Republic, who is a subject of the executive, in the area
of the formation of the corps of judges. On the other hand, thespecial institution of judges provided for in Part 5 of Article
112 of the Constitution is to be interpreted as an important
element of self-government of the Judiciary which is anindependent state power.
After the proposal of the Minister of Justice has been
established in the disputed parts of articles of the Law, the
recommendation of the Council of Judges becomes devoid of the
meaning attached to it by the Constitution, as in such a case
the actions of the President of the Republic are conditioned
not only by the recommendation of the Council of Judges but
also the proposal of the Minister of Justice which is not
provided for in the Constitution. Such legal regulation
violates the procedure of formation of corps of judges which is
established in the Constitution and interferes with the
competence of the President of the Republic and that of the
special institution of judges provided for in the Constitution.
7. Item 11 of Article 84 of the Constitution defines the
powers of the President of the Republic in the area of the
formation of the judiciary.The implementation of these issues is within the
competence of the President of the Republic. A special
institution of judges provided by law shall submitrecommendations to the President concerning the appointment of
judges, as well as their promotion, transference, or dismissal
from office (Part 5 of Article 112 of the Constitution).
The disputed norms of the Law provide that the Presidentof the Republic may implement his constitutional rights only in
case there is the proposal of the Minister of Justice. Thus theproposal of the Minister of Justice conditions theimplementation of the powers of the President of the Republic
established in Item 11 of Article 84 of the Constitution, when
the questions regarding professional career of judges aredecided. Alongside, the principle established in Part 2 of
Article 5 of the Constitution whereby the scope of powers shall
be circumscribed by the Constitution is violated.Taking account of the arguments set forth, a conclusion is
to be drawn that the disputed norms of Parts 2 and 3 of Article
33, Part 2 of Article 34, Parts 5 and 7 of Article 56 of theLaw wherein the proposal of the Minister of Justice to appoint
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and dismiss judges of respective courts and their chairpersonsis established contradict Part 2 of Article 5, Item 11 of
Article 84, Part 2 of Article 109 and Part 5 of Article 112 of
the Constitution.8. Part 4 of Article 33 of the Law provides that deputy
chairpersons of district and regional courts or court division
chairpersons, as well as mortgage judges of court mortgagedivisions, shall be appointed from among the appointed judges
by the Minister of Justice on the proposal of the chairperson
of the respective court. Under Part 3 of Article 34 of the Law,division chairpersons of the Court of Appeal shall be appointed
by the Minister of Justice from the appointed judges on the
proposal of the chairperson of this court.
Division chairpersons of the Court of the Appeal shall be
dismissed from office by the Minister of Justice on the
proposal of the Director of the Department of Courts, or on his
own initiative (Part 6 of Article 56 of the Law). Deputy
chairpersons or court division chairpersons of other courts, as
well as mortgage judges of district court mortgage divisions
shall be dismissed from office by the Minister of Justice on
the proposal of the Director of the Department of Courts, or on
his own initiative (Part 8 of Article 56 of the Law).
The petitioner maintains that the norms of the Law
providing for the right of the Minister of Justice to appoint
and dismiss deputy chairpersons and court division chairpersons
of respective courts contradict the Constitution. Thepetitioner does not dispute the procedure for appointment and
dismissal of mortgage judges of court mortgage divisions of
district courts, therefore the Constitutional Court will notinvestigate this issue.
While deciding whether the right of the Minister of
Justice to appoint and dismiss deputy chairpersons and court
division chairpersons of regional courts and court divisionchairpersons of the Court of Appeal as established in the
aforesaid norms of Articles 33, 34 and 56 of the Law, oneshould, first of all, take account of the status of deputychairpersons and court division chairpersons of the said courts
established in the Law and the powers of the Minister of
Justice as an official of the executive in relations with thejudiciary granted by the Law.
9. The principle of independence of judges and courts
entrenched in Part 2 of Article 109 of the Constitutionencompasses the organisational independence of courts as well.
Neither an institution nor an official of the executive may
interfere with the exercise of functions of courts or organisethe internal work courts. As mentioned in this ruling, the
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activity of courts is not and may not be an area ofadministration ascribed to a ministry.
In the context of the question at issue, it needs to be
noted that chairpersons of respective courts are appointed bythe President of the Republic. Under Item 11 of Article 84 and
Parts 3 and 4 of Article 112 of the Constitution, the President
of the Republic shall appoint the Chairperson of the Court ofAppeal with the approval of the Seimas. Chairpersons of
district, regional and specialised courts are also appointed by
the President of the Republic.Deputy chairpersons and court division chairpersons of
district and regional courts, court division chairpersons of
the Court of Appeal administer justice as judges, and in
addition, they are responsible for the area of the work
organisation in courts attributed to them. Under Parts 1 and 2
of Article 43 of the Law, in the absence of the chairperson of
a regional court or that of the Court of Appeal, the division
chairperson with seniority in service shall serve as the
chairperson, and in the absence of a district court
chairperson, his office shall be taken by his deputy.
Under the Law, individual organisational functions of
court's work are entrusted to deputy chairpersons or court
division chairpersons of district and regional courts and court
division chairpersons of the Court of Appeal, besides, in case
of need they substitute chairpersons of the said courts.
Therefore, taking account of the principle of independence ofjudges and courts entrenched in Part 2 of Article 109 of the
Constitution, as well as the fact that the activity of courts
in the course of their administration of justice is not and maynot be an area of administration of the Minister of Justice,
there are grounds to assert that after the powers of the
Minister of Justice to appoint deputy chairpersons and court
division chairpersons of respective courts had been establishedin the Law, conditions for the official of the executive were
created to interfere with the appointment of judicial officialsand with the activity of courts in general.Taking account of these arguments, a conclusion is to be
drawn that the disputed norms of Part 4 of Article 33, Part 3
of Article 34 and Parts 6 and 8 of Article 56 of the Lawcontradict Part 2 of Article 109 of the Constitution.
As mentioned, under Part 5 of Article 112 of the
Constitution, a special institution of judges provided by lawshall submit recommendations to the President concerning all
questions of professional career of judges. This is the Council
of Judges. The legal regulation established in the Law whendeputy chairpersons of courts and court division chairpersons
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are appointed by the Minister of Justice creates such a legalsituation where a subject provided for in the Constitution,
which is a special institution of judges, cannot accomplish its
competence attributed to it by the Constitution.Taking account of the motives set forth, one is to draw a
conclusion that the disputed norms of Part 4 of Article 33,
Part 3 of Article 34 and Parts 6 and 8 of Article 56 of the Lawcontradict Part 5 of Article 112 of the Constitution.
10. In Item 11 of Article 84 and Article 112 of the
Constitution the powers of the President of the Republic in thearea of the formation of the judiciary are established.
An analysis of the content of Item 11 of Article 84 of the
Constitution permits to assert that therein only the right of
the President of the Republic to appoint the Chairperson of the
Court of Appeal, chairpersons of regional and district courts
is established. The said article does not contain any directly
established right of the President of the Republic to appoint
and dismiss deputy chairpersons and court division chairpersons
of district and regional courts and court division chairpersons
of the Court of Appeal.
The Constitution does not provide for the posts of deputy
chairpersons of courts and court division chairpersons. The
legislator is entitled to provide for the said posts by law and
to establish a procedure for appointment of individuals to
these posts. In establishing these posts, the legislator is
bound by the principle of balance of powers established inArticle 5 and other articles of the Constitution and that of
the independence of judges and courts established in Part 2 of
Article 109 of the Constitution.Taking account of the motives set forth, one is to
conclude that the disputed norms of Part 4 of Article 33, Part
3 of Article 34 and Parts 6 and 8 of Article 56 of the Law are
in compliance with Item 11 of Article 84 of the Constitution.11. Doubts are expressed in the petition concerning the
compliance of Part 4 of Article 33, Part 3 of Article 34 andParts 6 and 8 of Article 56 of the Law with Part 4 of Article89 of the Constitution providing that the powers of the
President of the Republic may not be executed in any other
cases, or by any other persons or institutions with theexception of those provided for in the Constitution.
The content of Part 4 of Article 89 of the Constitution is
to be construed, while taking account of the legal regulationestablished in whole Article 89 of the Constitution. Parts 1
and 2 of Article 89 of the Constitution provide for the
conditions and subjects who act for the President of theRepublic in the event that the President dies or is removed
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from office according to impeachment proceedings, or if theSeimas resolves that the President of the Republic is unable to
fulfil the duties of office for reasons of health, and when the
President is temporarily absent beyond the boundaries of thecountry or has fallen ill and by reason thereof is temporarily
unable to fulfil the duties of office.
The disputed norms of Articles 33, 34 and 56 of the Lawregulate relations of state power in the area of the formation
of the judiciary. The Constitutional Court has already held in
this ruling that the disputed norms of the Law are incompliance with Item 11 of Article 84 of the Constitution
establishing the right of the President of the Republic to
appoint and transfer respective judges and chairpersons of
courts or to submit proposal to the Seimas regarding their
dismissal from office.
Taking account of these arguments, a conclusion is to be
drawn that the disputed norms of Part 4 of Article 33, Part 3
of Article 34 and Parts 6 and 8 of Article 56 of the Law are in
compliance with Part 4 of Article 89 of the Constitution.
III
On the compliance of Part 1 of Article 66 of the Law with
the Constitution.
1. Part 1 of Article 66 of the Law provides: "The
Prosecutor General shall be appointed and dismissed from office
by the Seimas of the Republic of Lithuania on the proposal ofthe Legal Committee of the Seimas. Candidatures for the post of
the Prosecutor General shall be submitted to the Legal
Committee of the Seimas by the Chairperson of the Supreme Courtof Lithuania and the Minister of Justice."
In the opinion of the petitioner, prosecutors are part of
the judiciary, therefore the right of the Minister of Justice
to propose candidatures to the post of the Prosecutor Generalis to be assessed as interference with the activity of courts
by the executive. In addition, this legal norm whereby thepowers to the Legal Committee of the Seimas to proposecandidatures for the Seimas to the post of the Prosecutor
General are granted restricts the powers of the Seimas to
appoint and dismiss the chief officers of state institutions asestablished in Item 5 of Article 67 of the Constitution. The
petitioner also maintains that this norm of the Law also
contradicts Article 76 of the Constitution as uncharacteristicfunctions are ascribed to the Seimas committee which are not
provided for in the Statute of the Seimas.
Taking account of the fact that not whole Part 1 ofArticle 66 of the law is disputed but only the norms
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establishing the powers of the Legal Committee of the Seimasand the Minister of Justice concerning the appointment of the
Prosecutor General, the Constitutional Court will only
investigate the compliance of only these norms of Part 1 ofArticle 66 of the Law with the Constitution. The Constitutional
Court will not investigate the questions linked with the powers
of the Chairperson of the Supreme Court regarding proposal ofcandidatures of the Prosecutor General to the Legal Committee
of the Seimas.
2. Part 1 of Article 118 of the Constitution provides thatpublic prosecutors shall prosecute criminal cases on behalf of
the State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies.
Article 1 of the Republic of Lithuania Law on the
Prosecutor's Office provides for the following guidelines of
public prosecutors: to initiate and conduct criminal
prosecution, to control the activities of the interrogative
bodies, to conduct preliminary investigation, to pursue a
public charge, to control the execution of a sentence, to
coordinate the actions of the bodies of interrogation and
preliminary investigation directed against crime, to defend, in
the manner established by law, the lawful interests of the
state and the violated rights of persons, to prepare material
for instituting civil proceedings in a law court and
participate during the examination of the case in court. Thus,
the Constitution and the laws provide that prosecutors performspecific functions characteristic of this institution only.
3. An analysis of the constitutional norms regulating the
formation of institutions of state power permit to draw aconclusion that when the appointment of the officials pointed
out in the Constitution is regulated, as a rule, not only the
subject who appoints them but also the one who has the right to
propose or submit their candidatures is established therein.The Constitution does nor provide for the post of the
Prosecutor General nor does it provide for the procedure forthe appointment of this official. Under Part 3 of Article 118of the Constitution, the procedure for the appointment of
public prosecutors and investigators and their status shall be
established by law.4. Part 1 of Article 66 of the Law provides that the
Prosecutor General shall be appointed and dismissed from office
by the Seimas of the Republic of Lithuania on the proposal ofthe Legal Committee of the Seimas. It is also provided for
therein that candidatures for the post of the Prosecutor
General shall be submitted to the Legal Committee of the Seimasby the Chairperson of the Supreme Court of Lithuania and the
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Minister of Justice. Thus, it is possible to divide theprocedure for the appointment of the Prosecutor General into
two phases. In the first phase the Chairperson of the Supreme
Court and the Minister of Justice propose the candidatures tothe Legal Committee of the Seimas, while in the second phase
the Legal Committee of the Seimas submits to the Seimas the
candidature of the Prosecutor General from among the proposedcandidatures.
The principle of the independence of judges and courts is
entrenched in Part 2 of Article 109 of the Constitution. UnderPart 1 of Article 114 of the Constitution, institutions of
state power and officials shall be prohibited from interfering
with the activities of a judge or the court. Thus, the purpose
of these norms is to protect judges and courts that implement
the function of justice. Prosecutors are not judges and they do
not administer justice. The Constitution entrusts them with a
specific function which may not be identified with
implementation of judicial power. The disputed norm of Part 1
of Article 66 of the Law does not regulate the questions of the
activities of judges and courts, therefore it is to be
concluded that the said norm of the Law is in compliance with
Part 2 of Article 109 and Part 1 of Article 114 of the
Constitution.
5. Item 5 of Article 67 of the Constitution provides that
the Seimas shall form State institutions provided by law, and
shall appoint and dismiss their chief officers.The petitioner maintains that the norm of Part 1 of
Article 66 of the Law whereby the Legal Committee of the Seimas
is empowered to submit to the Seimas the candidature of theProsecutor General restricts the powers of the Seimas to
appoint and dismiss the chief officers of state institutions as
established in Item 5 of Article 67 of the Constitution.
As mentioned, Part 1 of Article 66 of the Law providesthat the Prosecutor General shall be appointed and dismissed
from office by the Seimas of the Republic of Lithuania on theproposal of the Legal Committee of the Seimas. Thus, thedisputed norm of the Law provides for the right of the Seimas
to appoint and dismiss the chief officer of a state
institution. This official is appointed under procedureestablished by the Law.
Taking account of the aforesaid motives, it is to be
concluded that the norms of Part 1 of Article 66 of the Lawwherein the powers of the Minister of Justice and the Legal
Committee of the Seimas in connection with the appointment of
the Prosecutor General are established are in compliance withItem 5 of Article 67 of the Constitution.
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Alongside, the Constitutional Court notes that the normsof Part 1 of Article 66 of the Law wherein the powers of the
Legal Committee of the Seimas in connection with the
appointment of the Prosecutor General are established providefor the functions uncharacteristic of a committee of the
Seimas.
6. Article 76 of the Constitution provides that thestructure and procedure of activities of the Seimas shall be
determined by the Statute of the Seimas which shall have the
power of law.This article of the Constitution means that the Seimas has
the right to determine its structure and procedure of
activities by itself. The structure of the Seimas is a system
of its internal divisions established in the Statute of the
Seimas which must ensure the working capacity of the parliament
and its effective functioning.
Article 76 of the Constitution also provides for the form
of the legal act whereby the internal organisation and
procedure of activities of the Seimas are regulated, which is
the Statute of the Seimas. Under the Constitution, the Statute
of the Seimas shall have the power of law.
In the opinion of the petitioner, the norm of the Law
whereby functions not provided for in the Statute of the Seimas
are entrusted with the committee of the Seimas contradicts
Article 76 of the Constitution whereby the procedure of
activities of the Seimas shall be determined by the Statute ofthe Seimas.
It needs to be noted that the Constitution does not
provide for the functions of the committees of the Seimas. Thisquestion is regulated in the Statute of the Seimas. The
petitioner grounds the non-compliance of the disputed norm of
Part 1 of Article 66 of the Law with the Constitution on the
fact that this norm is not coordinated with the norms of thelegal act of the same legal power-the Statute of the Seimas.
The Constitutional Court notes that non-coordination of thenorms between legal acts of the same power may indicateinconsistency and even impropriety of legal regulation, but in
itself this may not serve as grounds for recognition that one
of these acts contradicts the Constitution.Taking account of the motives set forth, a conclusion is
to be drawn that the norms of Part 1 of Article 66 of the Law
wherein the powers of the Minister of Justice and the LegalCommittee of the Seimas in connection with the appointment of
the Prosecutor General are established are in compliance with
Article 76 of the Constitution.
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IVOn the compliance of Part 2 of Article 14, Parts 1 and 2
of Article 251, Part 1 of Article 26, Part 1 of Article 30,
Part 1 of Article 36, Article 40, Part 3 of Article 51, Part 2of Article 58, Part 4 of Article 59, Part 2 of Article 69 and
Part 2 of Article 73 of the Law with the Constitution.
1. The petitioner is of the opinion that the provisions ofPart 2 of Article 14, Parts 1 and 2 of Article 251, Part 1 of
Article 26, Part 1 of Article 30, Part 1 of Article 36, Article
40, Part 3 of Article 51, Part 2 of Article 58, Part 4 ofArticle 59, Part 2 of Article 69 and Part 2 of Article 73 of
the Law create direct and indirect opportunities for the
Minister of Justice to interfere with the activities of courts,
therefore they contradict Part 2 of Article 109 of the
Constitution.
2. Part 2 of Article 14 of the Law provides: "The number
of judges in the divisions of civil and criminal cases of
regional courts and the Court of Appeal shall be set by the
Minister of Justice on the proposal of the Director of the
Department of Courts under the Ministry of Justice (hereinafter
referred to as the Department of Courts), after consideration
of the opinion of the chairperson of the respective court. In
exceptional cases chairpersons of the said courts shall have
the right for the term of investigation of particular cases to
transfer a judge from one division to another division of the
same court on their own initiative."The petitioner doubts whether the aforesaid provisions of
Part 2 of Article 14 of the Law whereby the number of judges in
the divisions of civil and criminal cases of regional courtsand the Court of Appeal shall be set by the Minister of Justice
on the proposal of the Director of the Department of Courts,
after consideration of the opinion of the chairperson of the
respective court, is in conformity with Part 2 of Article 109of the Constitution.
Taking account of the arguments of the petitioner, theConstitutional Court will investigate the compliance of notwhole Article 14 of the Law but only that of the disputed norms
of Part 2 of the said article with the Constitution. When the
compliance of the disputed norm of the Law with theConstitution is assessed, it is important to establish whether
the right of the Minister of Justice to set the number of
judges in divisions of civil and criminal cases of regionalcourts and the Court of Appeal violates the constitutional
principle of the independence of judges and courts and whether
such legal regulation creates pre-conditions for the officialsof the executive to interfere with the activity of courts.
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3. Under the Law, the work of the respective court shallbe organised by the chairperson of the court. The assignment of
judges in the internal structures of the court also is within
this sphere of activity. Under the Law, the number of judges ofcourt divisions of respective courts shall be set by the
Minister of Justice on the proposal of the Director of the
Department of Courts, after consideration of the opinion of thechairperson of the respective court. Thus the Law grants the
right to the official of the executive to decide the questions
of internal organisation of court activities.The fact that decision of the questions of organisation of
internal activities of courts is ascribed to the Minister of
Justice is to be assessed as violating the independence of the
judiciary and as creating pre-conditions for an official of the
executive to interfere with the organisation of internal
activity of courts, and with the activity of courts in general.
Taking account of the motives set forth, it is to be
concluded that the disputed norms of Part 2 of Article 14 of
the Law contradict Part 2 of Article 109 of the Constitution.
4. Parts 1 and 2 of Article 251 of the Law provide:
"The Ministry of Justice together with the Department of
Courts shall organise and coordinate consistent training of
judges. When questions of promotion of judges are considered,
account is taken of the intensity of improvement of
professional skills of judges.
The forms of improvement of professional skills of judgesshall be compulsory and optional. The compulsory forms, except
for those designated to the judges of the Supreme Court of
Lithuania, shall be determined by a directive of the Ministerof Justice."
In the opinion of the petitioner, the norms of Parts 1 and
2 of Article 251 of the Law wherein it is established that the
Ministry of Justice shall organise and coordinate training ofjudges, which is taken account of when questions of promotion
of judges are considered, as well as the fact that thecompulsory forms of improvement of professional skills ofjudges shall be determined by a directive of the Minister of
Justice, contradict Part 2 of Article 109 of the Constitution
and create pre-conditions for the Minister of Justice tointerfere with the activity of courts.
Taking account of the motives set forth in the petition,
the Constitutional Court will investigate only the disputednorms of Parts 1 and 2 of Article 251 of the Law establishing
the powers of the Ministry of Justice to organise and
coordinate training of judges and those of the Minister ofJustice to determine the compulsory forms of improvement of
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professional skills of judges.The disputed norms of the Law regulate the organisation of
improvement of professional skills of judges. The
Constitutional Court notes that appropriate preparedness ofjudges, improvement of their knowledge and professional skills
are an important pre-condition of the guarantee of the proper
activity of courts. The Ministry of Justice may be empowered bylaw to create conditions for judges to raise their
qualification, therefore it may be granted powers necessary to
organise and coordinate consistent training of judges.Determination of the compulsory forms of training is to be
linked with particular professional requirements raised to
judges. All judges must have equal opportunities to improve and
raise their qualification. The powers of the Ministry of
Justice to organise and coordinate training of judges
pre-suppose an obligation of this ministry to guarantee equal
conditions for judges to improve their knowledge. Thus, the
Ministry of Justice, which is granted powers to organise and
coordinate consistent training of judges, may also be granted
the powers to determine the compulsory forms of training equal
to all judges. The competence of the Ministry of Justice to
organise and coordinate consistent training of judges and the
competence of the Minister of Justice to determine the
compulsory forms of improvement of professional skills of
judges, which is established by law, do not violate the
constitutional principle of the independence of judges andcourts.
Taking account of the motives set forth, one is to
conclude that the disputed norms of Parts 1 and 2 of Article251 of the Law wherein it is established that the Ministry of
Justice shall organise and coordinate training of judges, as
well as the fact that the compulsory forms of improvement of
professional skills of judges shall be determined by adirective of the Minister of Justice, are in compliance with
Part 2 of Article 109 of the Constitution.5. Part 1 of Article 26 of the Law provides: "TheLithuanian Judges' Examination Commission shall be formed for
the term of three years from six persons. The Council of Judges
and the Minister of Justice shall appoint three persons eachfrom judges and legal scholars as members of the Judges'
Examination Commission. The Chairperson of the Judges'
Examination Commission shall be appointed by the Minister ofJustice."
These norms of the Law regulate the procedure of formation
of the institution the purpose of which is to test the legalqualification of persons before they are appointed as judges.
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Under Article 28 of the Law, the oral and written examinationsof judges shall be taken by persons prior to their appointment
as judges. Thus the Judges' Examination Commission is charged
to perform a prior check of legal qualification of persons whowish to become judges.
The examinations commission is formed for the term of
three years from six persons. It is evident that half themembers of the commission are appointed by the Council of
Judges and another half-by the Minister of Justice from judges
and legal scholars. The Chairperson of the Commission isappointed by the Minister of Justice. Thus, this institution is
formed by representatives of two powers, i.e. those of the
executive and judiciary.
The Judges' Examination Commission tests the knowledge of
persons prior to their appointment as judges. It is not
empowered to test the knowledge of persons who already work as
judges. Thus, the norms of Part 1 of Article 26 of the Law
wherein the powers of the Minister of Justice to appoint the
members of the Judges' Examination Commission and the
chairperson of this commission are established do not violate
the constitutional principle of the independence of judges and
courts.
Taking account of the arguments set forth, it is to be
concluded that the disputed norms of Part 1 of Article 26 of
the Law are in compliance with Part 2 of Article 109 of the
Constitution.6. Part 1 of Article 30 provides: "The Council of Judges
shall consist of fourteen judges: five judges elected at the
general meeting of judges, one judge elected by the Associationof Judges of the Republic of Lithuania, two judges appointed by
the President of the Republic, two judges appointed by the
Minister of Justice, and ex officio the Chairperson of the
Supreme Court of Lithuania, court division chairpersons of thesaid court, and the Chairperson of the Court of Appeal."
The petitioner doubts whether the provision whereby theMinister of Justice appoints two judges as members of theCouncil of Judges is in conformity with Part 2 of Article 109
of the Constitution.
It needs to be noted that the Minister of Justice appointsonly two judges as members of the Council of Judges. The same
number of members of the Council of Judges is appointed by the
President of the Republic. Five judges are elected at thegeneral meeting of judges and one judge is elected by the
Association of Judges of the Republic of Lithuania as members
of the Council of Judges. Besides, the Chairperson of theSupreme Court of Lithuania, court division chairpersons of the
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said court, and the Chairperson of the Court of Appeal are exofficio members of the Council of Judges.
Thus, under the Law, the Council of Judges is formed by
the Association of Judges of Lithuania, the general meeting ofjudges, the Minister of Justice, the President of the Republic,
and respective members of the judiciary are its ex officio
members. The representatives of the executive, i.e. thePresident of the Republic and the Minister of Justice, appoint
only four of the fourteen members of the Council of Judges.
Thus, there are not any legal grounds to assert that the normsof Part 1 of Article 30 of the Law establishing the powers of
the Minister of Justice in the sphere of formation of a special
institution of judges provided for by law contradict the
independence of judges and courts.
Taking account of the arguments set forth, it is to be
concluded that Part 1 of Article 30 of the Law is in compliance
with Part 2 of Article 109 of the Constitution.
7. Part 1 of Article 36 of the Law provides that district
court judges shall be appointed for the first time for the term
of five years. Upon expiry of this term, district court judges,
on the proposal of the Minister of Justice and on the
recommendation of the Council of Judges, shall be appointed as
judges until they reach 65 years of age without taking the
examinations.
The petitioner is of the opinion that the proposal of the
Minister of Justice provided for in this norm createspre-conditions for his interference with the activity of
courts.
As mentioned, it is established in the disputed norm ofthe Law that district court judges shall be appointed for the
first time for the term of five years. The said term is to be
construed as the "term of powers" of the judge. Under Item 2 of
Part 1 of Article 115 of the Constitution, court judges shallbe dismissed from office upon expiration of their powers. Upon
expiration of the five-year term, provided the person hasproved by his performance and conduct to be fitting for thework of a judge, the question of his appointment for the longer
term of powers as pointed out in the Law is decided. Therefore
it is quite understandable that the Law contains the normwhereby upon the expiration of this term judges shall be
appointed until they reach 65 years of age without prior
passing of the examinations.The Constitutional Court notes that Article 112 of the
Constitution provides that a special institution of judges
provided by law shall submit recommendations to the Presidentof the Republic concerning the appointment of judges. Under the
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Law this is the Council of Judges. As mentioned, theConstitution does not provide for the proposal of the Minister
of Justice concerning appointment of judges, therefore such a
proposal may not condition the implementation of powers of thePresident of the Republic.
The Constitutional Court has already noted in this ruling
that the disputed norms of Parts 2 and 3 of Article 33, Part 2of Article 34 and Parts 5 and 7 of Article 56 of the Law
providing for the proposal of the Minister of Justice regarding
appointment and dismissal of judges contradict Item 11 ofArticle 84, Part 2 of Article 5, Part 2 of Article 109 and Part
5 of Article 112 of the Constitution.
Taking account of the arguments set forth, a conclusion is
to be drawn that the norms of Part 1 of Article 36 of the Law
containing the proposal of the Minister of Justice to appoint a
judge after the expiration of his five-year term of office
contradict Part 2 of Article 5, Item 11 of Article 84, Part 2
of Article 109 and Part 5 of Article 112 of the Constitution.
8. Article 40 of the Law provides: "Chairpersons of
district courts shall organise the working process of judges in
such a manner that they would have equal amount of work,
control the administrative activity of these courts (judges),
control as to how judges adhere to the principles of ethics and
the work of judges in controlling the work of bailiffs'
offices. The rules for distribution of cases to judges, with
the exception of the Supreme Court, shall be confirmed by theMinister of Justice on the proposal of the Director of the
Department of Courts."
In the opinion of the petitioner, the provision of thisarticle whereby the rules for distribution of cases to judges
shall be confirmed by the Minister of Justice contradict Part 2
of Article 109 of the Constitution.
It needs to be noted that the purpose of distribution ofcases which is accomplished by the chairperson of the court
under approved rules is to make sure that the judges would haveequal amount of work. Various ways of distribution of cases tojudges are possible.
The rules are a normative act. Their purpose is to make
sure that the same criteria of distribution of cases wereapplied in all courts of Lithuania. Taking account of the
arguments set forth, a conclusion is to be drawn that the
disputed norm of Article 40 of the Law is in compliance withPart 2 of Article 109 of the Constitution.
9. Part 3 of Article 51 of the Law provides: "A judge of a
district or regional court, that of the Court of Appeal and theSupreme Court of Lithuania, in case he agrees, may, by a decree
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of the President of the Republic, be delegated for the term ofup to one year to the structures of the Supreme Court of
Lithuania, those of the Ministry of Justice or the Department
of Courts the activities of which are directly linked with theorganisation of the activities of courts and their supervision.
For the term of the delegation, the powers of the delegated
judge shall be suspended. All social guarantees of thedelegated judge, including his salary and employment period
shall be preserved. His salary shall be paid by the same court
from which the judge has been delegated."The petitioner questions the conformity of the norms of
Part 3 of the aforementioned article concerning suspension of
the powers of the judge and his delegation to the structures of
the Ministry of Justice and the Department of Courts with Part
2 of Article 109 of the Constitution. The petitioner does not
question the delegation of the judge to the structures of the
Supreme Court, therefore the Constitutional Court will not
investigate this question.
Part 2 of Article 109 of the Constitution provides that,
while administering justice, judges and courts shall be
independent. Assessing the compliance of the disputed norms
with Part 2 of Article 109 of the Constitution, it needs to be
noted that Part 1 of Article 113 of the Constitution provides
that judges may not hold any other elected or appointed posts,
and may not be employed in any business, commercial, or other
private institution or company. They are also not permitted toreceive any remuneration other than the salary established for
judges as well as payments for educational or creative
activities. The purpose of these norms of the Constitution isto ensure the independence and impartiality of courts.
The delegation of a judge means that for some time he
holds another office, i.e. not that of a judge, in an
institution of the executive. However, the provisions of Part 1of Article 113 of the Constitution prohibit to delegate judges
to the structures of the executive. Under the Constitution, thePresident of the Republic does not have any powers to delegatea judge to the structures of the Ministry of Justice or the
Department of Courts. Neither does the Constitution provide for
an opportunity to temporarily suspend the powers of a judge.After he has been delegated to structures of the executive, the
powers of a judge shall be suspended (Part 3 of Article 51 of
the Law). It means that the legal status of a judge isvirtually change
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