Case No

Case No Case No. 1/96 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA D E C I S I O N On the request of a group of the Seimas members to investigate if the part of the 16 March 1993 Decree No. 15 of the President of the Republic “On the composition of the Government of the Republic of Lithuania” whereby Romasis Vaitekûnas is confirmed the Minister of Internal Affairs is in compliance with the Constitution of the Republic of Lithuania 29 May 1996, Vilnius The Constitutional Court of the Republic of Lithuania, composed of the justices of the Constitutional Court Egidijus Jaraðiûnas, Kæstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Teodora Staugaitienë, and Juozas Þilys, the secretary of the hearing - Daiva Pitrënaitë, in its procedural sitting discussed the request of the petitioner - a group of the Seimas members - to investigate if the part of the 16 March 1993 Decree No. 15 of the President of the Republic “On the composition of the Government of the Republic of Lithuania” whereby Romasis Vaitekûnas is confirmed the Minister of Internal Affairs is in compliance with Article 141 of the Constitution. The Constitutional Court has established: The petitioner - a group of the Seimas members - appealed to the Constitutional Court requesting to investigate if the part of the 16 March 1993 Decree No. 15 of the President of the Republic “On the composition of the Government of the Republic of Lithuania” whereby Romasis Vaitekûnas is confirmed the Minister of Internal Affairs is in compliance with the Constitution. The petitioner grounds his request with the following arguments. Romasis Vaitekûnas is an officer of the internal service. Before his appointment the Minister of Internal Affairs, he was a senior commissar of the Central Police Commissariat of the city of Ðiauliai. By the 12 May 1993 Decree No. 349p he was conferred the rank of general. According to Article 141 of the Constitution, officers of the national defence, the police and the internal service may not hold elected or appointed posts in State civil service. Therefore, in the opinion of the petitioner, the appointment of the officer the Minister of Internal Affairs contradicts Article 141 of the Constitution. The Constitutional Court holds that: Article 141 of the Constitution reads: “Soldiers in active military service or alternative service, officers of the national defence, the police and the internal service, non-commissioned officers, re-enlistees who have not retired from service, and other paid officials of military and security services may not be members of the Seimas or of local government Councils. They may not hold elected or appointed posts in State civil service, and may not take part in the activities of political parties and political organisations.” It is established in Article 2 of the Law of the Republic of Lithuania on Officials (Official Gazette “Valstybës Þinios”, No. 3-759, 1995) that the employees who are directly or indirectly elected by citizens of the Republic of Lithuania, or appointed to fulfil a political programme by the legislative or executive powers, or by self-government institutions, shall be politicians. The President of the Republic of Lithuania, the members of the Seimas, the Prime Minister and ministers shall be politicians of the State. The members of self-government councils shall be politicians of self-governments. It is prescribed in Article 3 of the said law that the employees (except for those mentioned in Article 2) who are paid remuneration from the means of the State or self-government budget shall be considered State and self-government officers. The nature of institutes of democratic power is that all persons who implement political will of the people are controlled in varied forms so that this will would not be distorted. While performing such control, the activity of these officials is inspected. In addition, the independence of activity of persons who fulfil political programmes is of crucial importance. It is necessary to emphasise that the Government is the part of State power which carries out a political programme. It is accountable to the Seimas, while the ministers - to the Seimas, the President of the Republic, and are under direct subordination of the Prime Minister. The relations of strict subordination and those of other regulations are of great importance to soldiers in active military service, officers of the national defence, the internal service, non-commissioned officers, officers of security services and other officials mentioned in Article 141 of the Constitution. It is established in Part 2 of Article 6 of the Law of the Republic of Lithuania on Police (Official Gazette “Valstybës Þinios”, No. 2-22, No. 16-410, 1991; No. 53-994, No. 82-1547, 1994; No. 92-2056, 1995) that police officials must obey the orders of the police officials of superior rank. One of the components of the police officials’ oath is conscientious execution of the laws of the Republic of Lithuania and the orders of his superiors. Article 3 establishing the principles of the internal service of the Law of the Republic of Lithuania on the Internal Service (Official Gazette “Valstybës Þinios” No. 3-34, 1992) indicates one-man management which is combined with collectiveness. Therefore there may appear an internal collision between the necessity to carry out the functions of State power and perform the requirements of the regulations in the activity of these and other persons mentioned in Article 141 of the Constitution. This may be one reason why the functioning of the democratic institutions could be deranged. Speaking of this aspect, the guarantees of democracy are also emphasised by the fact that the norm of Part 3 of Article 140 of the Constitution contains an imperative prohibition to the Minister of National Defence: “The Minister of National Defence may not be a serviceman who has not yet retired from active service.” Thus there are no preconditions to assert that a soldier, the officer of police, the internal service or any other person indicated in Article 141 of the Constitution may be a minister or hold other positions pointed out in this article without having retired from active service. By the disputed Decree of the President of the Republic, an officer of the internal service who has not retired from active service was appointed the Minister of Internal Affairs. Therefore, taking account of the motives and arguments set forth, there were grounds to assert that the part of the 16 March 1993 Decree No. 15 of the President of the Republic “On the composition of the Government of the Republic of Lithuania” concerning the confirmation the Minister of Internal Affairs of an officer of the internal service who had not retired from active service contradicted Article 141 of the Constitution. However, the President of the Republic by his 29 January 1996 Decree No. 22 (Official Gazette “Valstybës Þinios” No. 10-239) dismissed Romasis Vaitekûnas from the position of the Minister of Internal Affairs and consequently the disputed part of the legal act ceased to be legally valid. This is a ground to take a decision to terminate the legal proceedings commenced in this case. Conforming to Part 4 of Article 69, and Article 28 of the Law of the Republic of Lithuania on the Constitutional Court, The Constitutional Court shall take the following decision: To terminate the legal proceedings commenced in this case. Justices of the Constitutional Court: Egidijus Jaraðiûnas Kæstutis Lapinskas Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Teodora Staugaitienë Juozas Þilys