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The Constitutional Court of the Republic of Lithuania

Obsah (9)Article 46Article 4Article 102Article 1Article 55Article 5Article 6Article 2Article 14

The Constitutional Court of the Republic of Lithuania Case No.3/95 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of the Government of the Republic of Lithuania Re

Article 46

of the Law on Courts of the Republic of Lithuania,

Article 4

of the Law of the Republic of Lithuania on the Prosecutor’s Office, the Law of the Republic of Lithuania on State Control, and the Law of the Republic of Lithuania “On the Official Salaries of Judges of the Courts of the Republic of Lithuania, Officers of the Prosecutor’s Office, the State Arbiters, and Officers of the Department of State Control” Vilnius, 6 December 1995 the Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Algirdas Gailiûnas, Kæstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavièius, Stasys Staèiokas, Stasys Ðedbaras and Juozas Þilys, the secretary of the hearing Sigutë Brusovienë, the petitioner - members of the Seimas Andrius Kubilius and Vidmantas Þiemelis, representatives of a group of the members of the Seimas of the Republic of Lithuania, the party concerned - Head of the Wages Department of the Ministry of Social Security and Labour Algirdas Bartkevièius, the Secretary of the Ministry of Justice, Director of the Courts Department Artûras Drigotas and Director of the Finance and Economy Department Gertrûda Tumelienë, representatives of the Government of the Republic of Lithuania, pursuant to

Article 102

of the Constitution of the Republic of Lithuania and

Article 1

of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing of 7 November 1995 conducted the investigation of Case No.3/95 subsequent to the petition submitted to the Court by a group of members of the Seimas of the Republic of Lithuania requesting to investigate if the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995 does not contradict the Constitution of the Republic of Lithuania,

Article 46

and

Article 55

of the Law of Courts the Republic of Lithuania, Part1 of Article 4 and Article 35 of the Law of the Republic of Lithuania on the Prosecutor’s Office, Article 2 of the Law of the Republic of Lithuania on State Control, and the Law of the Republic of Lithuania “On the Official Salaries of Judges of the Courts of the Republic of Lithuania, Officers of the Prosecutor’s Office, the State Arbiters, and Officers of the Department of State Control”. The Constitutional Court has established: I On 31 March 1995, the Government of the Republic of Lithuania adopted Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” (Official Gazette “Valstybës Þinios”, No.30 - 685, 1995, hereinafter referred to in the Ruling as the disputed Government Resolution ) by which item 8 of the amended resolution has been formulated anew in the following way: “6. To establish that the Government of the Republic of Lithuania shall take decision on the amount of the additional official payments and bonuses awarded to the Chairperson (President) of the Supreme Court of Lithuania, the Prosecutor General of the Republic of Lithuania and the State Controller of the Republic of Lithuania; the Minister of Justice - to the chairpersons and judges of the Court of Appeals of the Republic of Lithuania, Area and District Courts and the Economic Court of the Republic of Lithuania, and the Prosecutor General of the Republic of Lithuania - to the heads of the prosecutor’s offices. Heads of the said institutions shall take decisions on the amount of the additional official payments and bonuses awarded to other officers and employees and shall establish the procedure for awarding of the bonuses”. The petitioner requests the Constitutional Court to investigate, if the said Government Resolution does not contradict Part 2 of Article 109 of the Constitution of the Republic of Lithuania,

Article 46

and

Article 55

of the Law on Courts of the Republic of Lithuania,

Article 4

and Article 35 of the Law of the Republic of Lithuania on the Prosecutor’s Office, Article 2 of the Law of the Republic of Lithuania on State Control, and the Law of the Republic of Lithuania “On the Official Salaries of Judges of the Courts of the Republic of Lithuania, Officers of the Prosecutor’s Office, the State Arbiters, and Officers of the Department of State Control”. II The petitioner grounds his request on the following arguments:

  1. Conforming to the disputed Resolution, the Government is entitled not only to establish the individual official additional payments of different amount, but also to award bonuses of unlimited amount to individual judges, prosecutors and other officers of the institutions listed in the Resolution. For example, it means that the Government and a member of the Cabinet (the Minister of Justice) assess, whether judges who investigated a case and other officers deserve a bonus in general and take decision on the amount of the bonus. Thus, the courts and the judges as well as the employees of the prosecutor’s office may be given to understand, which of their decisions and actions taken in the administration of justice are rated highly, and which are disapproved of.
  2. Part 2 of Article 109 of the Constitution establishes that “while administering justice, judges and courts shall be independent”. This provision of the Constitution has also been enacted in

Article 46

of the Law on Courts, and

the Article 55 of this Law indicates that “salaries of the judges shall be established by the laws of the Republic of Lithuania”. Therefore, no one, including the Government or the Minister of Justice, has been reserved the right to assess the work of judges and establish and pay individual official additional payments or award bonuses to them on the basis of these assessments. 3. Similar provisions on the independence of Officers of the prosecutor’s office have been enacted in the Law on the Prosecutor’s Office.

Article 4

of this law stipulates, that “in executing their powers, officers of the prosecutor’s office shall be independent and shall observe only the law”. In order to ensure this, Article 35 of the law provides for that “the procedure and terms and conditions of remuneration of the officers of the prosecutor’s office shall be established by the laws of the Republic of Lithuania”. The Law on the Prosecutor’s Office does not envisage that the Government may award bonuses to the officers of the prosecutor’s office. When the possibility to establish and award individual bonuses or lump sum bonuses to judges or officers of the prosecutor’s office is opened to the Government or the minister, the courts and the prosecutor’s office may no longer maintain their independence.

  1. Article 2 of the Law on the Department of State Control establishes that “the Department of State Control shall have its own estimate of expenditure which shall be proposed by the State Controller to the Seimas of the Republic of Lithuania for its approval”. If the funds for bonuses were to be included in the estimate of wages funds, they would be approved (appropriated) by the Seimas, not the Government.
  2. On 3 February 1993 the Seimas adopted (and appended on 18 March 1993) the Law “On the Official Salaries of the Judges of Courts of the Republic of Lithuania, Officers of the Prosecutor’s Office, State Arbiters and Officers of the Department of State Control”, which provided for that “until the respective laws are specified, the official salaries of the judges of the courts of the Republic of Lithuania, officers of the prosecutor’s office, [...] and the Department of State Control shall be established by the Government of the Republic of Lithuania”. There is no mention made in this law about the additional official payments or bonuses, therefore, by adoption of this Resolution the Government has committed a flagrant breach of the said law. There are no legal grounds for widening of the concept of the official salary of the listed officers by including in it the individual additional official payments and bonuses.
  3. Both the Constitution and the respective laws in operation contain provisions which safeguard the independence of the courts and the prosecutor’s office as they intentionally specify that the salaries of the officers of these institutions (and also the Department of State Control) shall be established only by law. However, the Government undertakes not only to determine the amount of the official salaries (it may exercise this right temporarily), but also to establish individual additional official payments of different amount or even award lump sum bonuses to the Chairperson (President) of the Supreme Court, the Prosecutor General and the State Controller (and the Minister of Justice - to the chairpersons and judges of courts) for their work done while investigating cases, for fairness and adherence to the principle. Therefore, individual officers of the courts, the prosecutor’s office and the Department of State Control may inevitably become dependant upon the Government materially.
  4. In the opinion of the petitioner, the Supreme Court, the Office of the Prosecutor General and the Department of the State Control and the heads and officers of these institutions will be able to observe only the law in practice and will be independent in executing their powers only in the event that instead of the additional official payments or bonuses they are paid for their work the official salaries of respectively higher amount which will be established only by the law, not the Government resolutions. III The representatives of the petitioner, members of the Seimas A.Kubilius and V.Þiemelis, having acquainted themselves with the explanations submitted by the representatives of the party concerned, have specified additionally:
  5. It is not true that the concept of independence of judges and courts may not be related to the problem of remuneration of the judges. If the Government is granted the right to manipulate the salaries of judges, the notion of independence of courts is rendered meaningless, because when considering the independence of courts and judges, usually the constancy of their salary is implied. In certain countries (e.g.Great Britain) reduction of the salaries of judges is forbidden. The system of establishing and awarding of the so-called bonuses in particular threatens the independence of the courts and other institutions which are the subject of analysis in this case, since the decision to award them is predetermined by the factors which are absolutely subjective.
  6. While interpreting the concept of independence it is necessary to stress, that the Constitution does not state expressly that the same safeguards guaranteeing the independence of courts should be applied to the prosecutor’s office and the State control, however, it is an undisputed fact that such safeguards are essential to these institutions. This need is reflected in the Law on the Prosecutor’s Office, which provides for, that the prosecutors’ office, while being an independent component of the judiciary, shall be independent of the institutions of state power and government. Whereas the State Control controls the activity of the Government, it should therefore be independent of the Government’s will to establish additional payments or bonuses and also of its influence on the decisions adopted by the state controllers.
  7. Judges, prosecutors and state controllers may and should be entitled to the additional official payments for years of service, their professional qualifications to be assessed on the basis of the clear criteria, also for the region in which they are working, however, it all should be prescribed by the law. IV The representatives of the party concerned, Head of the Wages Department of the Ministry of Social Security and Labour A.Bartkevièius, and the Director of the Finance and Economy Department of the Ministry of Justice G.Tumelienë, in their answers to the arguments submitted by the petitioner have indicated the following:
  8. Article 109 of the Constitution and Article 46 of the Law on Courts establish the independence of judges, however, this is no way related to the salaries of the judges and the additional official payments paid to them, because the judges are paid salaries and additional payments for their work, not for the investigation of individual cases. The judges are awarded bonuses on the occasions of jubilees and Christmas and Easter holidays, and the chairpersons of courts in individual cases are awarded the performance bonuses for good financial-economic results and organisation of work, for work with bailiffs etc.
  9. It is established in Article 55 of the Law on Courts that the official salaries of judges shall be established by the respective laws of the Republic of Lithuania. Drafting of such law is underway currently and it is expected that it will be adopted in the near future. The Law of 3 February 1993 provides that until the respective laws are specified, official salaries of the judges of the Republic of Lithuania, officers of the prosecutor’s office and other institutions indicated by the petitioner, shall be established by the Government of the Republic of Lithuania, and therefore there is no contradiction of laws in this case. Furthermore, Article 31 of the Statute of the Supreme Court of Lithuania (Official Gazette “Valstybës Þinios” No.36-887, 1995) which was enacted in 1995, establishes that the remuneration of a judge of the Supreme Court of Lithuania shall consist of the official salary established on the basis of a coefficient, additional payment for years of service in one’s capacity as judge and the additional official payment of a judge, which in the case of the Chairperson (President) of the Supreme Court shall be established by the Government of the Republic of Lithuania, and in the case of the chairpersons of the Court departments, judges and other officers of this Court - the Chairperson (President) of the Supreme Court. V In the court hearing the representative of the petitioner, a member of the Seimas A.Kubilius, has confirmed the request of the group of the Seimas members and the reasoning submitted in the additional explanation. In his opinion, the necessity for the judges, courts, the officers of the prosecutor’s office, and the state controllers to be entirely independent while making their decisions is beyond doubt. Whereas money and material prosperity is one of the likely instruments of influence which may be exerted over them. These officers should be protected against such influence. On the other hand, the executive, which according to the laws is controlled by these officers, should not be exposed to the temptation to exert such influence over the officers. In essence, the request contests the provision of the aforementioned Resolution which provides that the Government or the Minister of Justice may establish and give individual additional official payments or award bonuses, and by means of such instruments at the same time influence the decisions adopted by courts and other institutions. In that respect, the Resolution of the Government is clearly defective. The representative of the petitioner, a member of the Seimas V.Þiemelis has noted, that the Seimas has envisaged the right to establish the amount of the official salary, but not the official salaries with the additional official payments etc. In his opinion, it may not be claimed that the additional official payments should not be paid to the judges, prosecutors etc., however, the Seimas has either to append the law and accord the Government the right to make decisions to establish and pay payments, or solve this question in a different way. The Statute of the Supreme Court and the Statute on Service in the Prosecutor’s Office allow to pay the additional payments, however, it has to be established by whom (which authority) it is done and according to what procedure. The judge is not an officer according to the Constitution. In some countries, salaries of judges remain unchanged for many years, and in other countries their salaries are higher than a prime minister’s, and this does not surprise anyone. The situation should be the same in Lithuania. VI In the court hearing, the representative of the party concerned Director of the Finance and Economy Department of the Ministry of Justice G.Tumelienë has affirmed that the Seimas adopted a law by which it entrusted the Government to establish the salaries of the officers of courts, the prosecutor’s office and the State Control. The Government Resolution No.499 of 29 November 1991 says, that the heads of institutions have the right to pay the official salaries and additional official payments and award bonuses. The Law adopted by the Seimas on 3 February 1993 establishes, that the Government is entitled to set forth the additional conditions of remuneration of the officers of courts, the prosecutor’s office, the State Control and other institutions according to the procedure established in the Government Resolution No.499 of
  10. The bonuses are paid from the saved share of the wages fund. The judges are not awarded bonuses for their professional activities. The petitioner’s claim that the bonuses and additional payments are not part of the official salary is not substantially valid. The judges are paid their full salaries from the single wages fund, which is approved by the Seimas by its respective law. If the funds are saved, additional payments and bonuses are paid from the same wages fund and their amount is included in the amount of the official salary since they are taxed and their amount is included in an average monthly salary. In the opinion of the representative of the party concerned, the Secretary of the Ministry of Justice, Director of the Courts Department A.Drigotas, it is not prohibited by the law to establish the additional payments and the Government does not commit a breach of law by establishing the right to pay the additional payments and give other incentives. He confirmed that the additional payments and bonuses are not awarded for achievements in professional activity, therefore, they do not constitute the source of influence over the judges and the courts. The chairpersons and deputy chairpersons of courts, the chairpersons of the divisions of area courts and the Court of Appeals are awarded bonuses for the maintenance activities, as there exist a lot of maintenance problems pertaining to the establishment of court houses and fitting out of the premises. The judges who are coping with these tasks should be given incentives. These are today’s problems of living. The representative of the party concerned has admitted, that all judges would like that a more specific procedure for the establishment of the official salaries and provision of other social guarantees be prescribed by the laws and thus any possibility to manipulate the status of the judge be ruled out. The request of the petitioner should not be satisfied. Representative of the party concerned, the Head of the Wages Department of the Ministry of Social Security and Labour A.Bartkevièius has pointed out that the entry for the word “salary” in ”The Dictionary of the Modern Lithuanian Language” says that salary is “a payment for work”. One may maintain that the official salary together with the additional official payments constitute the payment for work. Bonuses may also be seen as a part of this payment. It is difficult to take account of the qualifications of a professional in a fixed salary scheme, therefore the additional payments justify themselves in this case. State agencies are not appropriated additional funds for payment of additional payments and award of bonuses. The Seimas approves the annual budget which is then being spent throughout the year. The disputed Government Resolution gives the Government the right to establish the additional payments and award bonuses only to three persons: the Chairperson (President) of the Supreme Court, the Prosecutor General and the State Controller. Additional payments and bonuses paid to other officers are established by the heads of their institutions, not the Government, therefore it may not be maintained that the Government may influence the decisions of the officers by adjusting their official salaries. At present officers of different institutions are remunerated for their work according to different rules. The system should improve upon enactment of the law which is currently being drafted and will introduce a uniform system of remuneration of employees of all institutions and organisations financed out of the State budget. The rules for the establishment of the salaries for judges vary from country to country. For example, in Sweden the Ministry of Justice has the right to determine the additional payments paid to judges, and in Estonia, pursuant to the government resolution, the Ministry of Justice also has the right to take decisions on the additional payments to the judges and officers of the prosecutor’s office. In the opinion of the representative of the party concerned, there are no grounds to draw conclusions about the independence of judges and other officers on the basis of the fact of payment of additional payments, since other guarantees or issues relating to the activities of these institution may also be the pretext for the raising of doubts about the independence of these institutions. The Constitutional Court holds that:

Article 5

of the Constitution establishes that “in Lithuania, the powers of the state shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary”. The content of this norm is disclosed in other articles of the Constitution. The competence of each institution of state power is established in accordance with its function, which is predetermined by the place of that power in the general system of powers and by its relationship with other powers. The Seimas enacts laws, considers the programme of the Government submitted by the Prime Minister, supervises the activities of the Government, appoints judges in the cases provided by the Constitution and decides other issues put forth in Article 67 of the Constitution. The President of the Republic, who is the head of the State, represents the State of Lithuania and performs all the duties which he is charged with by the Constitution and laws. The Government administers the affairs of the country, implements laws and resolutions of the Seimas, drafts and executes the State Budget when it is approved by the Seimas, and discharges other duties. Thus, the independence of separate branches of power, as well as the principle of balance of power is established in the Constitution. One of the fundamental distinguishing characteristics of a democratic state is the principle of independence of the judiciary. All democratic states adhere to this principle, and as the historic facts illustrate, denial of this principle is an immanent feature of a totalitarian and authoritarian regime. Taking into consideration the principle of division of powers established in the Constitution and the system of state institutions, it is impossible to give a uniform assessment of the contents of the question of relationship between the courts, the prosecutors and the State control on the one hand, and the Government on the other raised by the petitioner. The status of courts is determined in Chapter 9 of the Constitution. According to the Constitution, the prosecutors are a component part of the judiciary, therefore, the principles defining the independence of courts are applicable to them, but only with due consideration of the approach specified by the Constitution. Chapter 12 of the Constitution determines the functions and framework of activities of the State Control, the state institution of economic financial control, which supervises the legality of holding and use of state property and the State Budget performance process. It is accountable directly to the Seimas, which performs the parliamentary control of this institution. Taking into account the status of the courts, the prosecutor’s office and the State control, and the ways of the exercise of their jurisdiction, the petitioner’s request to investigate the compliance of the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, with the Constitution of the Republic of Lithuania and the principle of independence of courts, the prosecutor’s office and the State Control as determined by laws, has to be investigated separately in case of each institution. 1. On the compliance of the disputed Government Resolution with Part 2 of Article 109 of the Constitution of the Republic of Lithuania,

Article 46

and

Article 55

of the Law of the Republic of Lithuania on Courts as well as the Law “On the Official Salaries of the Judges of Courts, Officers of the Prosecutor’s Office, the State Arbiters and the Department of State Control of the Republic of Lithuania”. The judicial protection of human rights is enshrined in the Constitution.

its Article 30 establishes that a person “whose constitutional rights or freedoms are violated, shall have the right to appeal to court”, and Part of its Article 31 stipulates that : “Every indicted person shall have the right to a fair and public hearing by an independent and impartial court”. Thus, it is indispensable to safeguard the independence of courts in order to secure the human rights and freedoms in the first place. Parts 2 and 3 of Article 109 of the Constitution provide that: “When administering justice, judges and courts shall be independent. While investigating cases, judges shall obey only the law”. Therefore, the assumption that independence is not a privilege, but one of 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 the assessment of the independence of judges and court. Such concept of independence is also reflected in a number of international instruments. Article 10 of the Universal Declaration of Human Rights adopted by the UN General Assembly on 10 December 1948, establishes that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. By its resolution No.40/32 of 29 November 1985 and resolution No.40/146, the UN General Assembly approved “Basic Principles on the Independence of the Judiciary”. Article 1 of the document reads: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary”.

Article 6

of the European Convention for the Protection of Human Rights and Fundamental Freedoms establishes, that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. On 13 October 1994 the Committee of Ministers of the Council of Europe adopted Recommendation No.94/12 “On the Efficiency and Role of the Judges”. Item 3 of its rule 5 prescribes the following duties for the judges:

  1. a)to act independently and freely from an outside influence in all cases;
  2. b)to conduct an impartial investigation of the case based on the assessment of the established evidence and in conformity with the laws, and ensure an impartial hearing of all parties and compliance with provisions of the European Convention of Human Rights and Freedoms. This rule also requests the judges to abstain from the investigation of the case or resort to other measures in order to ensure the full realisation of the independence of courts. The judge is obligated to be independent by the oath, which according to Part 6 of Article 115 of the Constitution, is sworn by the judge upon his appointment to the office. The judge swears “to preserve loyalty to the Republic of Lithuania, to obey only the law while administering justice, to protect the human rights, freedoms and lawful interests, to conscientiously fulfil his duties, be human and to never discredit the name of the judge”. The Constitution, the Law on Courts and other laws provide for the complex of safeguards guaranteeing the independence of judges and court. On the basis of these guarantees conditions should be created preventing anyone’s interference with the actions of judges or the court while rendering an impartial and fair judgement. Impartiality of the judge is ensured not only by laws. The universally recognised code of judicial ethics establishes strict requirements of ethics (to be conscientious, discreet, attentive and to preserve dignity), professional qualifications (competence and impartiality) and other to judges. Thus, both the constitutional and other legal safeguards guaranteeing the independence of judges and the court, and the rules of judicial ethics create the basis for people’s belief in the impartiality and objectivity of the court as the arbiter of disputes. Review of the complex of the safeguards guaranteeing the independence of judges and the court and the responsibility of judges leads to the conclusion that they are closely interrelated. Therefore, the independence of judges and court in general may not be examined on the basis of one element, no matter how salient it may be. On the other hand, it must be admitted that if any of the safeguards guaranteeing the independence of judges and court are violated, it would impede administration of justice and protection of human rights and freedoms. The contents of the safeguards guaranteeing the independence of judges and court while administering justice first of all arises from their independence from
  3. a)any interference with their activities on the part of the parties to the case;
  4. b)the influence of the institutions of state power, government as well as social institutions, corporate, unlawful private or other interests. The nature of the safeguards of independence is also linked to the legal status of judges and court. The judge may not be qualified as a government officer according to the nature and contents of his principal duties. He may not be requested to co-operate in the implementation of a certain political programme. The judge is able to secure human rights and freedoms by way of administration of justice founded on laws and other legal acts. According to the detailed interpretation of the independence 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 the safeguards guaranteeing the independence of judges:
  5. a)those guaranteeing the security of tenure,
  6. b)guaranteeing personal immunity of a judge, and
  7. c)those securing social (material) guarantees of judges.
  8. a)A judge who is fulfilling his duties conscientiously, is guaranteed by Article 115 of the Constitution that he will not be dismissed from the office on the grounds other than specified in this article (upon expiration of his tenure or reaching pensionable age as determined by law, for reasons of health and other). The security of the tenure is important since it permits the judge to remain independent from the government of the day and avoid the pressure to accommodate to the likely change of political power. On the other hand, Article 115 of the Constitution envisages two specific cases which constitute the grounds for dismissal of judge from the office: if his behaviour discredits his position as judge, and when judgement imposed on him by court comes into force. It means that judges must meet very strict professional and ethics requirements. Behaviour of judges in and outside the office should raise no doubt about their independence.
  9. b)Part 2 of Article 114 of the Constitution says 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 of Lithuania. Article 116 maintains that if the Chairperson (President) or judges of the Supreme Court or the Court of Appeals grossly violate the Constitution, break their oath, or are found guilty of an offence, the Seimas may remove them from office according to impeachment proceedings. On the other hand, the judicial immunity also comprises their personal immunity from attempts to exert influence on them from outside. Article 114 of the Constitution establishes the liability for any attempts to prevent judges from conducting a fair and impartial hearing of the case and Article 298 of the Criminal Code specifies that any such actions shall incur criminal liability.
  10. c)Being arbiters of legal disputes, judges must be not only qualified professionals and have authority, but also be independent materially. For that end, laws of many countries provide for a separate procedure for establishment of salaries or various additional payments for judges on the basis of a uniform criterion. Usually their remuneration is of significantly higher amount than that of the officials. This tradition used to be practised in Lithuania as well. Higher salaries of the judges had been established by a separate law. As early as the end of the eighteenth century, the US Constitution enacted a provision that the salary of judge may not be reduced during his tenure. This principle became widespread universally and was proclaimed as one of the fundamental safeguards guaranteeing the independence of judge. Therefore, any attempts to reduce the salary or other social guarantees of judge or cut the budget of the judiciary are interpreted as infringement on the judicial independence. In the opinion of the petitioner’s representative, the very procedure for establishment of salaries of judges constitutes a violation of judicial independence, because according to the disputed Government Resolution the Government undertakes not only to determine the official salaries of judges (it has such temporal right according to the law), but also to approve and pay to them additional official payments or even award bonuses of different amount. The petitioner’s representatives, in essence not disputing the issue of the additional official payments established for judges for service years, also on other grounds, maintain that it all should be prescribed by the law, and not by the Government resolution or order of the Minister of Justice. In its assessment of the opinion expressed by the petitioner, the Constitutional Court points out, that the Constitution does not specify which institution - the Seimas or the Government - establishes the official salaries of judges. However, in observance of the general constitutional principles of judicial independence, the legislator has established in Article 55 of the Law on Courts that salaries of judges shall be regulated by the laws of the Republic of Lithuania. The Constitutional Court also stresses that the wages fund for paying of the salaries of judges is annually approved by the Seimas in the Law on Budget, and not by the Government. The amount of the official salary and the additional official payments for judges are determined on the basis of the amount of this fund. At present, the composition of the salary of every judge does not depend on the number of cases processed by him or, moreover, upon the judgement rendered by a judge in a given case; it is based on the general criteria which are applied to determine the amount of the official salary of a judge. Additional official payments are not established on an individual basis. Besides, additional official payments paid to the Supreme Court judges are established not according to the provisions of the disputed Government Resolution, but pursuant to the norms of the Statute of the Supreme Court which has been enacted by law already. It may not be omitted at the same time that the Seimas in its Law adopted on 3 February 1993 ruled that “until the respective laws are specified, [...] the amount of the official salaries of judges of courts of the Republic of Lithuania shall be determined by the Government of the Republic of Lithuania”. In the interim, while the law on the salaries of the judges has not been not enacted yet, the Government remains responsible for the task assigned to it by the Seimas, and in the Law on Budget approved annually by the Seimas reasonable limits for fulfilment of this task are set out. Conforming to the above provided argumentation, a conclusion is to be made that the right to establish the additional official payments for judges prescribed in the disputed Government Resolution on the basis of general criteria, does not contradict the Constitution. However, by the disputed Government Resolution, the Government has also been reserved the right to award bonuses to the Chairperson (President) of the Supreme Court, and the Minister of Justice - the chairpersons and judges of the Court of Appeals, area and district courts and the Economic Court. Payment of bonuses is a method of stimulating of individual incentive. It means that judges may be selected individually for stimulating of such incentive and the amount of the bonus may also be established individually in the case of everyone who is awarded. Usually the function of the bonus is to give incentive to the employees to achieve certain results. As it has been mentioned already, judges obey only the law while administering justice. It means that judges may not be encouraged or induced to conduct a case in a particular manner, since the judge has to establish the objective truth in a given case and on the basis of conclusive evidence to apply the law which is to be invoked. Furthermore, all judges enjoy equal status, only their responsibilities and functions differ, depending on which level of the judicial system they are working at. Award of bonuses is usually linked with the implementation of labour relations regulated by law, whereas judges are not subordinate to any authority, nor to the Government or the Minister of Justice, therefore, payment of bonuses to judges entails violation of independence of the judiciary. Pursuant to the above mentioned reasoning, a conclusion is to be made that provision of Item 6 of the amended Resolution set forth in the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, stipulating that the Government of the Republic of Lithuania shall take decisions on the amount of bonuses awarded to the Chairperson (President) of the Supreme Court, and the Minister of Justice - to the chairpersons and judges of the Court of Appeals, area and district courts and the Economic Court of the Republic of Lithuania, contradicts Part 2 of Article 109 of the Constitution and

Article 46of the Law on Courts.

2. On the compliance of the disputed Government Resolution with

Article 4

and Article 35 of the Law of the Republic of Lithuania on the Prosecutor’s Office as well as the Law of the Republic of Lithuania “On the Official Salaries of Judges of Courts, Officers of the Prosecutor’s Office, the State Arbiters, and Officers of the Department of State Control” The principal functions of the prosecutors and investigators are prescribed in Chapter 9 of the Constitution titled “The Court”. The prosecutors and investigators are treated in it as a component of the judiciary. Thus, while conducting the legal proceedings, they are applied the safeguards guaranteeing the independence of the judiciary established by laws. The prosecutors or investigators are independent, and they act independently when they pursue a public charge, carry out criminal prosecution, control the activities of the agencies of preliminary inquiry and conduct preliminary investigation. The prosecutors or investigators obey only the law while making decisions in such cases and there can be no interference with their activities. Part 3 of Article 118 of the Constitution states that the status of prosecutors and investigators shall be established by law. Consequently, the law gives a more specific definition of the place of these officers in the system of the judiciary. Article 4 of the Law on the Prosecutor’s Office provides for the safeguards guaranteeing the independence of the officers of the prosecutors’ office.

the said article stipulates that “in executing their powers, officers of the prosecutor’s office shall be independent and shall observe only the law”. Part 2 of this article states the following: “The institutions of state power and government and their respective officers, as well as political parties, public organisations and movements, and the mass media shall be prohibited from interfering with the work of the prosecutor’s office during the investigation of cases and discharge of other functions of the prosecutors’ office”. This prohibition is aimed at preventing the hindrance to objective examination of all the circumstances of the case during the investigation. Any influence upon the investigators or prosecutors may inflict irreparable harm and lead to disastrous consequences: the guilty person may be relieved of liability or an innocent person may be held criminally liable. In view of this, validity of the part of the disputed Government Resolution, in which it is established that the Government shall take decision on the amount of the bonus to be awarded to the Prosecutor General, appears to be doubtful. As it has been mentioned already, norms set forth in Article 118 of the Constitution, establish that the prosecutors and investigators are a component of the judiciary, and the Prosecutor General is disassociated from the executive not only on the basis of his general status, but also owing to the rule that he is appointed for seven years and dismissed from the office by the Seimas. Therefore, the Prosecutor General has to be independent while discharging the duties assigned to him. The fact that the Government may choose when to establish and award bonus to the Prosecutor General and take a decision on the amount of the bonus, permits to assume that it will assess the activities of the Prosecutor General and decide whether to award him the bonus depending on the results of such assessment. The very existence of the possibility to make assessments alone is the grounds for conclusion that the executive is thus infringing on the independence of the component of the judiciary, i.e. the prosecutors. Thus, this part of the disputed Government Resolution contradicts

Article 4of the Law on the Prosecutor’s Office.

A different interpretation is to be offered of the disputed Government Resolution on the award of the bonuses to the heads, officers and employees of the prosecutor’s office. The laws establish separate social guarantees for the officers of the prosecutor’s office (salary, pensions, compensations etc.) taking into account the nature and contents of their duties. In the petitioner’s opinion, some of the established safeguards not only fail to guarantee the independence of the officers of the prosecutor’s office, but they also directly cause the preconditions for violation of their independence to exist. In particular, it is the part of the disputed Government Resolution which regulates the procedure for the establishment of additional official payments to the officers of the prosecutor’s office and award of bonuses to them. The petitioner also claims, that the law contains no grounds for broadening of the concept of salary of the aforementioned officers by including in it the individual additional official payments, and that the established procedure for awarding of bonuses may give the officers of the prosecutor’s office to understand which of their actions are welcome, and which are not. In its assessment of the petitioner’s opinion, the Constitutional Court stresses that on 31 January 1995 the Seimas adopted a law, which approved the Statute of Service in the Prosecutor’s Office (Official Gazette ”Valstybës Þinios”, No.15-345, 1995). This act and its appendices establish the composition of the salary of officers of the prosecutor’s office, their social guarantees, the procedure for giving incentives etc. Article 55 of the Statute stipulates that for exemplary performance the officers of the prosecutor’s office may be awarded a bonus or a valuable gift to encourage them, and Article 66 regulates that the remuneration of the officers shall consist of the official salary (the amount of which depends on the type of their duties), and additional payments for years of service and ranks held. Furthermore, those officers who achieve excellent results in their service or while disclosing organised crimes and pursue public charges in cases on such crimes, also officers who work in standing groups on the investigation of organised crimes and operation groups, may be paid an additional official payment. Thus, the procedure for awarding of the additional payments and bonuses to the officers of the prosecutor’s office established by the norms the of law, is a component of the internal labour relations of the prosecutor’s office, on which other branches of power may not exert any influence. It should also be noted, that approval of the Statute of Service in the Prosecutor’s Office of the Republic of Lithuania resulted in the conflict of the said law and the Law of 3 February 1993 “On the Official Salaries of Judges of the Republic of Lithuania, State Arbiters and Officers of the Prosecutor’s Office and the Department of State Control”, namely, the part of the said law which regulates the procedure for the establishment of the salaries of officers of the prosecutor’s office and awarding of bonuses to them. In the case of the conflict of laws, the norm of the law which was enacted later becomes effective. The earlier law entrusted the Government an unspecified task to establish the official salaries of the officers of the prosecutor’s office, whereas the Statute of Service in the Prosecutor’s Office which was enacted by the law in effect at present, provides for the structure of the salary of the officers of the prosecutor’s office as well as the grounds and procedure for giving incentives to them. The laws in operation at present establish the additional official payments, extra payments and bonuses to the officers of the prosecutor’s office, and the Law on Budget approves the funds appropriated for the payment of such salaries and bonuses. Therefore, a conclusion is to be made that the provision of the disputed Government Resolution, setting forth that the Prosecutor General of the Republic of Lithuania shall take decision on the amount of additional official payments and bonuses awarded to the heads, other officers and employees of the prosecutor’s office, and establishes the procedure for awarding of bonuses to them, does not contradict

Article 4

and Article 35 of the Law on the Prosecutor’s Office as well as the Law “On the Official Salaries of Judges of the Republic of Lithuania, State Arbiters and Officers of the Prosecutor’s Office and the Department of State Control”. 3. On the compliance of the disputed Government Resolution with Article 53 of the Law on State Control of the Republic of Lithuania and the Law of the Republic of Lithuania “On the Official Salaries of Judges of the Republic of Lithuania, State Arbiters and Officers of the Prosecutor’s Office and the Department of State Control”. The petitioner requests the Constitutional Court to investigate whether the disputed Government Resolution is in compliance with Article 2 of the Law on State Control. The Constitutional Court has taken into consideration the fact that after the petitioner has submitted his request to the Court, the Seimas adopted the Law of the Republic of Lithuania on State Control (Official Gazette “Valstybës Þinios”, No.51 - 1234, 1995) and declared the Law of the Republic of Lithuania on the Department of State Control null and void (Official Gazette “Valstybës Þinios” No.51 - 1244, 1995 ). The provision of Article 2 of the Law on the Department of State Control setting forth that “the State Control shall be financed out from the State Budget of Lithuania” which was mentioned by the petitioner, in essence complies with Article 53 of the adopted Law on State Control. However, in comparison with the law which had been effective before, other essential amendments were introduced in the Law on State Control, therefore, all the argumentation submitted by the petitioner shall be assessed in this Ruling with consideration to the norms of the Law on State Control which is valid at present. Article 134 of the Constitution says: “State control shall supervise the legality of the management and utilisation of State property and the realisation of the State budget. The State Controller shall give an account to the Seimas on the annual execution of the State Budget”.

Article 2

of the Law on State Control says that the State Control is “the supreme institution of economic financial control accountable to the Seimas of the Republic of Lithuania which supervises the legality of holding and use of the state budget and the State Budget performance”. In pursuit of this goal the officers of the State Control control economic and financial activities of the Seimas Chancellery, offices accountable to the Seimas and subdivisions rendering services to the Seimas, the Chancellery of the President of the Republic of Lithuania and subdivisions rendering services to the President, the Government’s Chancellery, ministries, Government offices and other offices financed from the State Budget, also the Constitutional Court, courts, prosecutor’s offices and the police, as well as the activities of State-owned enterprises or those enterprises in which no less than half of voting shares are owned by the state, also the legality of State property privatisation and the distribution, use and repayment of all types of credits obtained on behalf of the State as well as credits taken with the Government guarantee. To enable the State Control to discharge all the functions vested in it objectively, the independence of this institution must be safeguarded. Though neither the Constitution nor the Law on State Control establish any specific safeguards guaranteeing the independence of the institution, however, the contents of the law gives the grounds for a conclusion that this law seeks to ensure objectivity of the activities of the officers of this institution and to protect them against any influence from outside. This follows from the rights and duties of the officers of State Control, prohibitions and restrictions imposed on them as established in this Law. In the petitioner’s opinion, the Government has violated the independence of the officers of State Control having provided for the award of bonuses to them in the disputed Government Resolution. The arguments submitted to support this standpoint maintain that the estimate of expenditure of this institution is approved by the Seimas. Therefore, “if the bonus fund was to be included in the wages fund, the bonus fund would be approved (appropriated) only by the Seimas, not the Government”. The Constitution Court, in its assessment of the opinion of the petitioner, takes into consideration the fact that the Law on State Control (its Article 55) provides for an independent source for giving incentives to the personnel of the State Control. Thus, the right of the State Controller to grant bonuses to the officers and other employees of his institution is based on the Law of State Control, and not the disputed Government Resolution. This right is also founded on the laws on labour as they give the head of the institution the right to give incentives to his employees. The internal relations among the heads of institution and its employees relating to the awarding of bonuses are based on the laws and they may not be interpreted as constituting the influence of other branches of power, institutions or individual persons on the employees of the institution. The possibility to give the additional official payments to the State Controllers may not be interpreted as an outside influence on the functions discharged by them due to the same reasons and owing to the fact that these payments may only be assigned from the wages fund. Thus, the part of the disputed Government Resolution in which the State Controller is asked to establish the procedure for awarding of bonuses to the employees of his institution, and for payment of additional official payments, does not contradict Articles 2, 53 and 55 of the Law on State Control, also the Law “On the Official Salaries of Judges of the Republic of Lithuania, State Arbiters and Officers of the Prosecutor’s Office and the Department of State Control”. However, the disputed Government Resolution enacted a provision, stipulating that the Government shall take decisions on the amount of the additional official payments paid to the State Controller and the bonuses awarded to him. It means that the Government reserves itself the right to give bonuses to the head of the institution of State Control. As it has been mentioned, the Constitution and the Law on State Control entrusts the State Control to supervise the legality of the management and utilisation of State property and the realisation of the State budget. The Government has particularly wide powers in these areas. Therefore, an assumption may be made that reserving itself the right to give bonuses to the State Controller and take decision on the amount of the bonus by virtue of the disputed Resolution, the Government may exert influence on him. This contradicts the principle of independent activity of the State Controller. The State Controller is not linked up to the Government by way of relations of labour or subordination. On the contrary, his independence is illustrated by the procedure of his appointment ( Part 2 of Article 133 of the Constitution), his accountability to the Seimas (

Article 14of the Law on State Control) etc.

In view of the aforementioned motives, a conclusion is to be made that the provision of the disputed Government Resolution, setting forth that the Government shall take decision on the amount of the bonuses awarded to the State Controller of the Republic of Lithuania, contradicts Article 134 of the Constitution and

Article 2of the Law on State Control.

Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55 and 56 of the Law On the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following ruling: 1. To recognise that the provision of the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, setting forth that the Government of the Republic of Lithuania shall take decisions on the amount of the bonuses awarded to the Chairperson (President) of the Supreme Court of Lithuania, the Prosecutor General of the Republic of Lithuania and the State Controller of the Republic of Lithuania respectively contradicts Part 2 of Article 109 and Article 134 of the Constitution of the Republic of Lithuania,

Article 46

of the Law of the Republic of Lithuania on Courts,

Article 4

of the Law of the Republic of Lithuania on the Prosecutor’s Office and

Article 2of the Law of the Republic of Lithuania on State Control.

2. To recognise that the provision of the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, setting forth that the Minister of Justice shall take decisions on the amount of the bonuses awarded to the chairpersons and judges of the Court of Appeals of Lithuania, area and district courts and the Economic Court of the Republic of Lithuania contradicts Part 2 of Article 109 of the Constitution and

Article 46of the Law of the Republic of Lithuania on Courts.

  1. To recognise that the provision of the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, setting forth that additional official payments shall be established to the Chairpersons and judges of the Court of Appeals of Lithuania, district and area courts and the Economic Court of the Republic of Lithuania, does not contradict the Constitution.
  2. To recognise that the provision of the Government of the Republic of Lithuania Resolution No.465 “On partial amendment to the Government of the Republic of Lithuania Resolution No.124 ‘On the remuneration of officers of the courts of the Republic of Lithuania, the State Arbitration, the Prosecutor’s Office, and the Department of State Control’ of 3 March 1993” adopted on 31 March 1995, setting forth that heads of the institutions (the Prosecutor General and the State Controller) listed in the resolution shall take decision on the amount of additional official payments and bonuses given to other officers and employees and shall establish the procedure for awarding of bonuses to them, does not contradict Part1 of Article 4 of the Law of the Republic of Lithuania on the Prosecutor’s Office and

Article 2of the Law of the Republic of Lithuania on State Control.

This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court Algirdas Gailiûnas Kæstutis Lapinskas Zigmas Levickis Vladas Pavilonis Pranas Vytautas Rasimavièius Stasys Staèiokas Stasys Ðedbaras Juozas Þilys

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