Editor’s Note: Today we publish the 2016 Report on Lithuanian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Dr. Dainius Žalimas, Professor, Law Faculty of Vilnius University, and President, Constitutional Court of the Republic of Lithuania; Dr. Ingrida Danėlienė, Lecturer, Law Faculty of Vilnius University, and Secretary General, Constitutional Court of the Republic of Lithuania; Vaidas Lubauskas, Head of the Division of Legal Research, Constitutional Court of the Republic of Lithuania
I. Overview
For the Constitutional Court of the Republic of Lithuania, the past year was steadfast in terms of the variety and complexity of constitutional matters brought before it. In 2016, the Constitutional Court had, inter alia, to adjudicate on such issues as the dismissal of criminal proceedings after the expiry of a statutory limitation period for criminal liability without giving the accused person the possibility of removing doubts regarding his/her guilt; the limitation on the amount of a maternity allowance payable to mothers before and after childbirth; the temporary removal from office of a municipal mayor or deputy mayor suspected of having committed a criminal act; the payment of remuneration to members of the Seimas (the Parliament of the Republic of Lithuania) who fail to perform their duties; the approval given by the Seimas for a questionable conclusion of an ad hoc investigation commission of the Seimas, etc.[1]
As was noted in one of the decisions adopted by the Constitutional Court last year, under the Constitution of the Republic of Lithuania, courts not only administer justice but, in the same manner as other state institutions, may implement, within their competence, the constitutional objectives pursued under the foreign policy of the Republic of Lithuania and international obligations of the state, taking into account the constitutionally established geopolitical orientation of the State of Lithuania. The activity of the Constitutional Court in the field of international cooperation in 2016 can serve as an illustration of such possible engagement by courts. Two key points follow from this activity of the preceding year, i.e. the intensive preparation by the Constitutional Court for the 4th Congress of the World Conference on Constitutional Justice,[2] to be held from 11 to 14 September 2017 in Vilnius, and its cooperation with the constitutional courts of the European Union’s Eastern Partnership countries—Georgia, the Republic of Moldova, and Ukraine—by providing assistance to these countries in their processes of creating a state under the rule of law.
In 2016, the Constitutional Court also strongly advocated in favour of the individual constitutional complaint and its introduction into the constitutional legal order. The year 2016 was notable for positive changes in the field of public relations and publicity of the Court’s activities. For instance, the Constitutional Court was the first among Lithuanian courts to launch the live Internet broadcasting of its public hearings; the provisions of the systematised official constitutional doctrine of the Republic of Lithuania and the texts of other publications that had previously been produced only in a printed format were made available on the official website of the Constitutional Court.
II. The Constitution and the Constitutional Court
The Constitution of the Republic of Lithuania was adopted by referendum on 25 October 1992. This marked a new future of the constitutional development of an independent democratic state of Lithuania. The Constitution, as the highest-ranking act and a social contract, is based on universal and unquestionable values, such as sovereignty belonging to the Nation, democracy, the recognition of inalienable human rights and freedoms and respect for them, respect for law and the rule of law, the limitation of the scope of state powers, the duty of state institutions to serve the people and their responsibility to society, civic consciousness, justice, and the striving for a harmonious civil society and a state under the rule of law.
For the first time in the history of the State of Lithuania, the Constitution of 1992 also consolidated the institute of constitutional judicial review. The Constitution stipulates that, in Lithuania, constitutional control is carried out by the Constitutional Court, which consists of nine justices, each appointed for a single nine-year term of office. The Constitutional Court, which was formed and began its activities in 1993, ensures the supremacy of the Constitution within the legal system, as well as administers constitutional justice, by deciding whether the laws and other legal acts adopted by the Seimas are in conformity with the Constitution, and whether the acts adopted by the President of the Republic or the Government are in compliance with the Constitution and laws. Under the Constitution, in performing this function, the Constitutional Court has the exclusive powers to interpret the Constitution by revealing its meaning and the content of its provisions.
According to the Constitution, the right to apply to the Constitutional Court is vested in the Seimas in corpore, not less than 1/5 of all the members of the Seimas, the President of the Republic, the Government, and all courts. The Lithuanian legal system does not provide for the institution of the individual constitutional complaint, which would enable individuals to directly apply to the Constitutional Court. However, legislative actions have recently been taken (i.e. relevant constitutional amendments have been registered) in the Seimas in order to introduce individual constitutional complaints.
Currently, the Constitutional Court is also a full member of international organisations—the World Conference on Constitutional Justice and the Conference of European Constitutional Courts— uniting constitutional justice institutions. From the very beginning of its activity, the Constitutional Court has been actively cooperating with the constitutional courts of neighboring countries—Latvia and Poland. Over the last few years, the Constitutional Court has considerably strengthened the cooperation with the constitutional courts of the European Union’s Eastern Partnership countries— Georgia, the Republic of Moldova, and Ukraine. The Constitutional Court also maintains cooperation ties with the European Commission for Democracy through Law (Venice Commission), which have become especially evident in the context of the upcoming 4th Congress of the World Conference on Constitutional Justice.
III. Constitutional Controversies
According to the official constitutional doctrine developed by the Constitutional Court of the Republic of Lithuania, respect for international law is an inseparable part of the constitutional principle of a state under the rule of law. However, due to the fact that the Constitution and international law are inherently autonomous and have superiority in their respective spheres, certain incompatibilities between international legal norms and constitutional norms may arise.[3] The so-called Paksas case is a prominent example of such incompatibility.
This case was initiated in the European Court of Human Rights (ECtHR) after the Constitutional Court had adopted the ruling of 25 May 2004, in which it was held that, under the Constitution, a person who, inter alia, grossly violated the Constitution and breached the oath and, as a result of this, was removed under the impeachment procedure from office could never again stand in elections for an office requiring a person to take an oath to the State of Lithuania. A person who was directly affected by the said Constitutional Court’s decision—Rolandas Paksas, a former President of the Republic of Lithuania—applied to the ECtHR in defence of his right to stand in elections. Having considered the application, in its judgment of 6 January 2011,[4] the ECtHR ruled that the permanent and irreversible disqualification from standing in parliamentary elections was disproportionate and that, in having established such a disqualification, Lithuania had violated Article 3 of Protocol No 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), which, as mentioned in the judgment of the ECtHR, consolidates the fundamental principle of an effective political democracy and implies the subjective rights to vote and to stand for election. In the judgment of the ECtHR, it is acknowledged that the right at issue is not absolute and that certain limitations of this right are permissible, but that these limitations may not be of a permanent character.
The Constitutional Court and the ECtHR assessed the situation regarding one’s ineligibility to stand in parliamentary elections from different positions: in its rulings, the Constitutional Court emphasised allegiance to the State of Lithuania, loyalty, and (in)eligibility to take up a responsible office once a serious transgression has been committed—a gross violation of the Constitution and a breach of an oath taken to the state; while the ECtHR interpreted the same situation more through the right of the electorate – the citizens of the state concerned—to determine and decide whom they would like to see as their representatives, as well as through the disclosure and interpretation of the concept of the electoral right.
After the delivery of the said judgment of the ECtHR, measures were taken in Lithuania to implement it. The Seimas adopted amendments to the Law on Elections to the Seimas, under which, a person who grossly violated the Constitution and breached the oath could stand in parliamentary elections after a five-year period following his/her removal from the office held. Such provisions amending the law were evidently incompatible with the doctrinal provisions formulated in the Constitutional Court’s ruling of 25 May 2004. Thus, it is no wonder that the Constitutional Court, in its ruling of 5 September 2012, recognised that such amendments were in conflict with the Constitution. The Constitutional Court held that, in itself, the judgment of the ECtHR may not serve as a constitutional basis for the reinterpretation (correction) of the official constitutional doctrine, and that the renouncing of international obligations in the sphere of human rights would not be a constitutionally justified option. This led to another important conclusion, namely that the Republic of Lithuania is obliged to adopt relevant amendment(s) to the Constitution.
In 2016, the Constitutional Court had to return to this issue by assessing the constitutionality of the resolution of the Seimas whereby the Seimas had approved the conclusion of the ad hoc Investigation Commission of the Seimas for the Restoration of the Civil and Political Rights of President Rolandas Paksas.[5] Having found the resolution of the Seimas to be in conflict with the Constitution, the Constitutional Court reiterated that, in order to remove the incompatibility between the Constitution and the provisions of the Convention, as well as to implement the related judgment of the ECtHR, there is only one way – to amend the relevant provisions of the Constitution; any other way is impossible under the Constitution.
The Seimas has repeatedly attempted to implement the aforementioned judgment of the ECtHR in a constitutional way, i.e. by adopting the amendments of the Constitution, which would lead to the elimination of the incompatibility between the provisions of the Constitution and the Convention, but none of its attempts have been successful.
IV. Major Cases
A. Separation of Powers
The Constitutional Court has held more than once that, after the Constitution has directly established the powers of particular institutions of state power, no state institution may take over such powers from another state institution, or transfer or waive them, and that such powers may not be amended or restricted by means of a law; otherwise the principle of the separation of powers, which is consolidated in the Constitution, would be violated. The Constitutional Court had to recall the said doctrinal provision in its ruling of 22 December 2016. This case dealt with the issue of the approval given by the Seimas for the questionable proposals of an ad hoc Investigation Commission of the Seimas (hereinafter referred to as the Commission) for the Restoration of the Civil and Political Rights of President Rolandas Paksas. The Constitutional Court set out the principled provision that the Seimas may not approve a conclusion of any possible content made by an ad hoc investigation commission of the Seimas, inter alia; any such proposals formulated therein that would be incompatible with, among other things, the requirements stemming from the constitutional principle of the separation of powers.
One of the proposals set out in the conclusion of the Commission was to supplement the provisions of the Statute of the Seimas governing impeachment proceedings so that the Seimas would be granted the competence, under the specified circumstances, to review and annul an impeachment against a person without applying to the Constitutional Court concerning this issue. The Constitutional Court found that such proposal denied the constitutional concept of the institute of impeachment as revealed in the official constitutional doctrine, under which two independent institutions of state power—the Seimas and the Constitutional Court—have powers in impeachment proceedings; under the Constitution, each of these institutions in impeachment proceedings is assigned specific powers corresponding to their respective functions. If such proposal were implemented, the Seimas would interfere with the competence assigned to an institution of judicial power – the Constitutional Court – in impeachment proceedings and take the powers granted to the Constitutional Court. Moreover, by means of the proposals (among other things, to regulate the legal consequences of constitutional liability by means of a resolution of the Seimas) as set out in the conclusion of the Commission, an attempt was made to interpret the provisions of the Constitution in a way different from that provided by the Constitutional Court in its acts, thus denying the powers of this court to officially interpret the Constitution and interfering with the constitutional competence of this court (as an institution of judicial power) to administer constitutional justice.
Therefore, this resolution of the Seimas, whereby the Seimas had approved the conclusion of the aforementioned Commission, was ruled by the Constitutional Court to be in conflict with, inter alia, the constitutional principle of the separation of powers.
B. Rights and Freedoms
The vast part of the constitutional justice cases considered in 2016 comprised cases significant for protecting and ensuring the constitutional rights and freedoms of persons (the right to fair proceedings, the right to freely choose a job or business, the right to receive fair pay for work, the right to social security, the protection of consumer rights, the equality of the rights of persons). Among the cases in this category, particular attention should be paid to three cases.
Firstly, in one of its cases, the Constitutional Court had to assess the constitutionality of the provisions of the Code of Criminal Procedure regulating the termination of criminal proceedings after the expiry of a statutory limitation period. In the ruling of 27 June 2016, the impugned legal regulation was held to be in conflict with the Constitution insofar as, under this regulation, a case was to be dismissed by the court without assessing charges brought against the accused and without ascertaining whether the accused had reasonably been charged with having committed a crime or whether the acquitted person was reasonably acquitted of a crime with which he/she had been charged. The Constitutional Court held that the impugned legal regulation precluded a court from acting in such a way that the truth in a criminal case would be established and the question of the guilt of the person accused of having committed a crime would be fairly resolved. If a court fails to assess whether the charges brought against the accused person are reasonable and the case is dismissed for the reason that the statutory limitation period for criminal liability has expired, the impression is created that the accused is not convicted only because the prescribed limitation period has expired. Thus, the preconditions are created for the continued doubts as to whether the accused was reasonably charged with having committed a crime, as well as the continued doubts as to the good repute of the accused.
In the second case at issue, the Constitutional Court considered the constitutionality of the legal regulation, consolidated in the Code of Criminal Procedure, under which a member of a municipal council holding the office of mayor or deputy mayor may be temporarily removed from office if he/she is suspected of the commission of a criminal act or is charged with committing a crime. The Constitutional Court, in its ruling of 17 February 2016, held that, under the Constitution, the status of a municipal council member holding the office of mayor or deputy mayor does not imply any requirement that, with regard to this municipal council member, the relevant law must establish such grounds and procedure for applying procedural coercive measures (including temporary removal from office) that would be different from those established with regard to other persons. The Constitutional Court also held that the Code of Criminal Procedure consolidates the sufficient guarantees to ensure that the rights of a person, inter alia, a member of a municipal council holding the office of mayor or deputy mayor who is subject to the procedural coercive measure of temporary removal from office, including the right to freely choose a job, would not be limited in a disproportionate manner. Therefore, the impugned legal regulation was ruled not in conflict with the Constitution, insofar as it does not establish the prohibition on removing a member of a municipal council from the office of mayor or deputy mayor, or any additional criteria limiting the duration of his/her removal from office.
In the third case in this category, the Constitutional Court had to assess the constitutionality of the legal regulation imposing a limitation on the size of maternity allowances. By its ruling of 15 March 2016, the Constitutional Court recognised the unconstitutionality of the impugned legal regulation, insofar as it provided that a maternity allowance could not be higher than the maximum amount provided for in the Law on Sickness and Maternity Social Insurance. Under the impugned legal regulation, in cases where the average remuneration received by a working woman exceeded the maximum compensatory earnings, she was granted a maternity allowance calculated according to these compensatory earnings, and the amount of the payable allowance was not connected to the remuneration received by the woman within the established period before the leave and could be significantly lower than the average of the received remuneration. According to the Constitutional Court, the impugned legal regulation, whereby the amount of a maternity allowance was limited, did not appropriately implement the guarantee of paid leave before and after childbirth, as consolidated in Paragraph 2 of Article 39 of the Constitution, under which the amount of benefits paid to working mothers during the guaranteed period of their leave before and after childbirth must correspond to the average remuneration received by them within the reasonable period of time before this leave.
C. Foreign, International, and Multilateral Relations
Substantiating the interpretation concerning the right of judges to receive other remuneration, the Constitutional Court, in its decision of 16 May 2016, revealed new aspects of the activity of courts related to foreign policy and international relations. It noted that, under the Constitution, the role of courts is not limited exclusively to the administration of justice. Like other institutions of state power, courts, within their constitutional competence, either independently or in cooperation with other state institutions, may participate in carrying out the general tasks and functions of the state. Among other things, courts may also engage in the activity aimed at achieving the constitutional objectives of the foreign policy of the Republic of Lithuania and in fulfilling international obligations and obligations related to full membership in the EU and NATO, including participation in international cooperation and democracy promotion projects. This geopolitical orientation pursued by the Republic of Lithuania constitutes a constitutional value and implies the relevant activity of the State of Lithuania, its institutions, and individuals employed therein, which is aimed at contributing to the partnership of other states within the EU or NATO, or at contributing to the integration of these states into the said international organisations by promoting the dissemination of universal and democratic values and the principles of EU law, including the dissemination of these values and principles in the spheres related to the improvement of the systems of justice and the activity of courts. Thus, the participation of the State of Lithuania and its institutions, including courts, in the said activity may be implemented, among other things, through the engagement of judges in support projects funded by international organisations or foreign states, or in projects financed under the Lithuanian Development Cooperation and Democracy Promotion Programme, in cases where such projects are related to improving the system of justice and the activity of courts. However, the said participation may not interfere with the performance of the main constitutional judicial function of administering justice in a proper and effective manner and must be compatible with the impartiality and independence of judges.
D. Other
Among other cases of 2016, particular mention should be made of the ruling of 5 October 2016, in which the Constitutional Court declared unconstitutional a provision of the Statute of the Seimas insofar as, under this provision, remuneration for the given month could not be reduced by more than one-third for a member of the Seimas who, during that month, continuously failed, without an important justifiable reason, to attend the sittings of the Seimas or the sittings of the committees or other structural units of the Seimas. In its ruling, the Constitutional Court noted that, under the Constitution, when regulating one of the guarantees of the parliamentary activity of the members of the Seimas, i.e. the payment of remuneration for the work of the members of the Seimas, the legislature must take account of the constitutional duty of the members of the Seimas to attend the sittings of the Seimas, as well as the sittings of the committees or other structural units of the Seimas. The legislature is also obliged to provide for the financial consequences for continuous failure (without an important justifiable reason) to fulfill this constitutional duty. The episodic or even continuing fulfillment of only part of the constitutional powers (such as drafting laws and other legal acts of the Seimas, meeting with voters, performing other parliamentary activities) of a member of the Seimas without an important justifiable reason, including failure to attend the sittings of the Seimas, or the sittings of the committees or other structural units of the Seimas, may not be regarded as the proper implementation by the member of the Seimas of his or her constitutional duty to represent the Nation, i.e. the duty for the implementation of which the member of the Seimas is remunerated. Thus, the payment of remuneration from the funds of the state budget to a member of the Seimas who continuously, without an important justifiable reason, fails to attend the sittings of the Seimas, or the sittings of the committees or other structural units of the Seimas, should be considered a constitutionally unjustified privilege.
V. Conclusion
The preceding year was marked not only by the variety and complexity of constitutional matters brought before the Constitutional Court but also by the intensive international cooperation and public promotion of the activity of the Constitutional Court. In 2017, the Constitutional Court will face other challenges, the biggest one most probably being the 4th Congress of the World Conference on Constitutional Justice, which will focus on “The Rule of Law and Constitutional Justice in the Modern World”. At the same time, the Constitutional Court will carry out its jurisprudential activity following from the adjudication of constitutional justice cases, which promise to be important and complex. For instance, the Constitutional Court will investigate the constitutionality of the legal provisions exempting from mandatory military service the priests of certain religious communities and associations. It will also have to consider whether, in cases of family reunification, the Constitution allows refusing to issue a temporary residence permit to a foreign national who has entered into a same-sex marriage or same-sex registered partnership in another state with a citizen of the Republic of Lithuania who resides in Lithuania (taking into account the circumstance that such marriages or partnerships are not allowed under national law).
[1] Texts of the acts of the Constitutional Court in English are available on its official website http://www.lrkt.lt/en/court-acts/rulings-conclusions-decisions/171/y2016.
[2] For more information, please consult the official website of the 4th Congress http://www.wccj2017.lt/en.
[3] Dainius Žalimas, ‘The Openness of the Constitution to International Law as an Element of the Principle of the Rule of Law’ (International Conference ‘Constitutional Court of the Republic of Slovenia – 25 Years’, Bled, June 2016) <http://www.us-rs.si/media/zbornik.25.let.pdf>.
[4] Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011).
[5] For more information on this case, see Chapter IV.1 of this report.
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