The Constitutional Court Of

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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


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


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


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,


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

The Constitutional Court Of

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