of the Law on the Officials of the Republic of Lithuania with the Constitution of the Republic of Lithuania 6 May 1997, 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, Pranas Vytautas Rasimavièius, and Juozas Þilys, the secretary of the hearing - Daiva Pitrënaitë, the party concerned - the associate professor Dr. Alfonsas Vileita, the adviser at the Legal Committee of the Seimas, the representative of the Seimas of the Republic of Lithuania, pursuant to
of the Constitution of the Republic of Lithuania and
of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 10 April 1997 conducted the investigation of Case No. 13/96 subsequent to the petition submitted to the Court by the petitioner - the Anykðèiai Regional District Court - requesting to investigate if Item 2 of
of the Law on the Officials of the Republic of Lithuania was in compliance with
,
and
The Constitutional Court has established: I On 15 August 1996, the petitioner - the Anykðèiai Regional District Court - was investigating a civil case subsequent to the complaint of V. Ponomariovas, the representative of the Government for the Utena county, in connection with the appointment of A. Dûda the chief executive of the Kurkliai neighbourhood in the Anykðèiai district. By its interlocutory ruling the said court suspended the investigation of the aforesaid case and appealed to the Constitutional Court with the request to investigate whether Item 2 of
of the Law on the Officials of the Republic of Lithuania (Official Gazette “Valstybës Þinios” No. 33-759, 1995) was in compliance with
,
and
II The petitioner indicated in its interlocutory ruling that by his 27 April 1995 order No. 13p-k the local government mayor of the Anykðèiai district appointed A. Dûda the chief executive of the Kurkliai neighbourhood. The representative of the Government for the Utena county lodged a complaint against the aforesaid order of the mayor in the Anykðèiai District Regional Court stating that A. Dûda was not permitted to act as the chief executive as it had in his possession a private enterprise, which contradicted Item 2 of
of the Law on the Officials of the Republic of Lithuania stipulating that “Officials shall be prohibited from: [...] 2) being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring or holding in trust more than 10 % of securities of one enterprise”. The local government mayor of the Anykðèiai district, when the case was being investigated in court, had doubts as to the compliance of Item 2 of
He grounded his doubts on the fact that the prohibitions specified in Item 2 of
of the said law meant that a person who has in his possession the property mentioned in the aforesaid item may not be an official, and, on the other hand, a person who acts as an official may not possess the indicated property. Shares, a private enterprise, financial securities etc. are the same property as a house, a car etc. The Constitution gives priority to the right of private ownership, freedom of individual economic activity and initiative (
), freedom to choose an occupation or business (
). Item 2 of
of the Law on Officials contradicts the provisions of Article 23 of the Constitution which determine that property shall be inviolable; laws may prescribe only the protection of the rights to property but not their restriction, whereas property may be seized for the needs of society and must be adequately compensated for. Besides, during the proceedings, the local government mayor of the Anykðèiai district maintained that the aforesaid item of the Law on Officials also contradicted the provisions of
of the Constitution whereby citizens shall have the right to participate in the government of their state both directly and their freely elected representatives, and shall have the equal opportunity to serve in a state office of the Republic of Lithuania. Item 2 of
of the Law on Officials established discriminatory restrictions to different categories of persons for service in a state office. In the opinion of the local government mayor of the Anykðèiai district, this contradicted the stipulation of
of the Constitution that all people shall be equal before the law, the court, and other state institutions and officers. Therefore the Anykðèiai District Regional Court had doubts whether Item 2 of
III In the course of preparation of the case for the court hearing, S.Staèiokas, Chairman of the Legal Committee of the Seimas, presented his explanation. It was pointed out therein that disputed Item 2 of
The provision of the item in question contradicted Article 23 of the Constitution which determines that property shall be inviolable, and that the rights of ownership shall be protected by law. In the case at issue the legal norm requires not to possess certain property or, providing one wishes to act as an official in the civil service, to refuse a certain portion of the property possessed. It is maintained in the explanation that disputed Item 2 of
of the Law on Officials restricts the legal capacity of officials and, furthermore, officials are singled out from other citizens of the Republic of Lithuania. Such a restriction of the rights of one group of people contradicts Article 29 of the Constitution (and not only its Part 1 but also Part 2) which determines that all people shall be equal before the law and that a person may not have his rights restricted on the basis of his social status. Officials are a social group of the Lithuanian society, therefore their rights may not be restricted. In addition, in the explanation of the Chairman of the Legal Committee of the Seimas it is stated that the provision of the Law on Officials under investigation also contradicts
whereby citizens shall have the equal opportunity to serve in a state office of the Republic of Lithuania. The requirement for the said equal opportunities is groundlessly violated. A person who possesses a private enterprise or is a member of a partnership must not necessarily manage (supervise) these enterprises by himself. This may be done by hired managers, directors or other employees. The fact that an official possesses shares does not hamper the performance of his duties. An official who performs his duties inadequately because of the fact that he spends too much time in managing his property may be dismissed from work for negligent performance of duties. Officials who do not possess the property mentioned in Item 2 of
Therefore it could be possible to restrict the right of an official to hold only such a position, or to perform only such functions which are contrary to his proprietary interest and which may create a possibility to abuse his official position. For such an abuse officials may be dismissed from their positions. During the investigation of the case in the court hearing, the representative of the party concerned virtually reiterated the arguments set forth in the explanation of the chairman of the Legal Committee of the Seimas. In the course of preparation of the case for judicial investigation, an explanation of G. Ðvedas, a secretary at the Ministry of Justice, and that of K.Skrebys, the minister of public administration reforms and local government affairs, were received. The Constitutional Court holds that: In attempt to regulate the relations of the civil service, on 4 April 1995 the Seimas passed the Law on Officials wherein the objective of the civil service was determined, as well as state and local government officials were defined. The said law established the procedure of employment in the civil service, as well as the rights, duties and responsibility of officials, along with the termination of office relations. The said law specifies that the civil service is the performance of duties in the Seimas, the institutions of the President, the Government, other state institutions, and structural divisions of local government in accordance with the list of offices of the civil service. According to the aforesaid law, state and local government officials are held employees of the civil service the work of whose exerts influence on the activity of the institution according to the competence of the said institution. Thus officials stand out from other employees by the character of their link with the state: the official is a citizen who is in office relationship of an institution of public power, i.e. in that of the state or local government, and who, on the instructions of these institutions, performs the functions of public power. The service of an official is based on the fact that in his activity he must show preference to public but not personal interests or those of different persons, their groups, political parties or organisations, nor may he bind himself to other persons if this is incompatible with the civil service. Taking account of the nature of the civil service, the duties of officials have been specified. They must: implement Government decrees, other legal acts which regulate the functions of officials; implement the tasks and instructions given to them by their chiefs; take decisions provided for in the laws determining their competence and in office regulations, and insist that the decisions be timely and accurately carried out; comply with the established regulations of professional ethics; perform their duties faultlessly and in a cultured manner; improve their qualification; keep confidential the state and official secret established by normative acts; guarantee the open character of their work, present information on their work to the residents in the manner established by law; defend the lawful interests of the state an local governments; declare their property and income in accordance with the procedure established by law; refrain from engaging in public and political activities within the office premises and during working hours. According to the Law on Officials, officials shall have the right to: refuse to fulfil a task or an instruction if, in their opinion, the given task or instruction is not in conformity with the law; at the expense of the institution improve their qualifications for 15 to 30 days in 2 years, etc. Thus, officials constitute such a social group of society the general legal status whereof is determined by the purpose of the civil service and its public significance. Therefore not incidentally, along with immediate duties of officials, some prohibitions of and restrictions on their activity have been established. They are set down in
1.1. The petitioner states that the prohibitions established in Item 2 of
of the Law on Officials contradict the provisions of Article 23 of the Constitution whereby property shall be inviolable; laws may prescribe only the protection of the rights to property but not their restriction, whereas property may be seized for the needs of society and must be adequately compensated for. The statement of the petitioner is grounded on the fact that shares, a private enterprise, financial securities etc. are the same property as a house, a car etc. In his opinion, the Constitution gives priority to the right of private ownership, freedom of individual economic activity and initiative, as well as freedom to choose an occupation or business. 1.2. Article 23 of the Constitution stipulates: “Property shall be inviolable. The rights of ownership shall be protected by law. Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for.” To implement the constitutional provisions “Property shall be inviolable” and “The rights of ownership shall be protected by law”, an entire legal system of civil, administrative, criminal and other branches of law has been created. Not only do legal norms consolidate the right of the owner to manage, use and dispose of his property, but they also safeguard the said subjective rights and legitimate interests. By emphasising the constitutional protection of property, one should also bear in mind the fact that the principle of inviolability of property should not be treated as being absolute. It was noted in the 13 December 1993 ruling of the Constitutional Court that “neither Constitution nor valid system of other laws, nor universally recognized norms of international law deny the opportunity under conditions and procedure prescribed by the law to alienate the property or restrict its possession, use or disposal”. The necessity to restrict subjective rights of the owner may ensue either from actions of the person himself, or from agreements or international obligations of the state. Such a restriction may also be conditioned by the nature of property or an interest important to society. The specific status of the civil service and that of the official may also be a precondition for certain restrictions. However, the restrictions must be established by the law, and they are permitted only when they are in compliance with the Constitution. It is possible to presume that by the prohibitions established in Item 2 of
of the Law on Officials whereby officials were prohibited from being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring or holding in trust more than 10 % of securities of one enterprise, a publicly important preventive objective was sought which was to put an end to the fact of using working hours and the opportunities provided by the office for other than official purposes by the officials. The implementation of the interest of society which is recognised by the state and is protected by law is one of the most important conditions of existence and evolution of society itself. However, noting that the public interest is a dominating one in civil service relations, one should take account of the fact that, from the social standpoint, the public interest, as well as the person’s rights to property, is a constitutional value. Therefore in the case of collision of these values while satisfying the public interest, it is not sufficient to recognise restrictions of proprietary rights only. It is also important to assess the fact as to upon what scale these restrictions influence the aforementioned values. In other words, one must take account of the nature and scale of the restrictions themselves and to assess their validity from such a standpoint. The Constitutional Court, on the grounds of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, in its 13 February 1997 ruling held that restrictions on human rights and freedoms are possible, i.e. they are regarded as grounded if they meet two conditions:
of the Law on Officials, an official may not be the owner of a private enterprise. It means that he, while being in the relations of the civil service, is prohibited from not only possessing a private enterprise as private property (i. e. being its owner) but also from buying, inheriting or acquiring otherwise a private enterprise. Also an owner is prohibited from being full members or silent partners in a partnership. It means that he may have a share of possessions in neither a general partnership nor in a commandite (limited) partnership. Thus the said prohibitions violate in fact the right to property, to objects of certain kind of particular persons. Besides an owner is prohibited from acquiring more than 10 % of securities (shares, etc.) of one enterprise. This provision also restricts in essence the right to property. Taking account of the motives set forth, it is to be concluded that the prohibition prescribed by Item 2
of the Law on Officials stipulating that officials shall be prohibited from being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring more than 10 % of securities of one enterprise contradicts Article 23 of the Constitution. Alongside, the Constitutional Court notes that the prohibition for officials to hold in trust more than 10 % of securities of one enterprise which is established in Item 2 of
In this particular case an official is prohibited from holding on trust certain property, i.e. certain possessions of another person, which does not mean denial of the right to property of officials. Therefore the said prohibition is in compliance with Article 23 of the Constitution. 2. On the compliance of Item 2 of
of the Law on Officials with
and
2.1. The petitioner alleges that Item 2 of
of the Law on Officials contradicts the provisions of
of the Constitution whereby citizens shall have the right to participate in the government of their State both directly and through their freely elected representatives, and shall have the equal opportunity to serve in a State office of the Republic of Lithuania. The petitioner is of the opinion that the said item of the Law on Officials establishes discriminatory restrictions on certain categories of persons to serve in a State office, which is incompatible with the stipulation of
of the Constitution whereby all people shall be equal before the law, the court, and other State institutions and officers. 2.2. Article 29 of the Constitution sets down a common principle of people’s equality: “All people shall be equal before the law, the court, and other State institutions and officers. A person may not have his rights restricted in any way, or granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.” The principle of people’s equality may be defined as non-discrimination. This principle is reflected in
which prescribes the right of citizens to equal opportunity to serve in a State office of the Republic of Lithuania. As a rule, discrimination is understood as a change of a situation of a person or group of persons with respect to other persons without any objective justification. However, in certain cases, providing there exists a sufficiently motivated and grounded cause, it is possible to establish by the law a legal status for different groups of subjects and to consolidate certain particularities of legal situation. It means that the constitutional principle of people’s equality does not deny a possibility to differently treat people as to their status. Restrictions on a person or a group of persons are varied and, as a rule, established due to 2 reasons: due to objective differences (sex, age, etc.) or because of the fact that this is required by public interests (e.g., citizenship). One must note that the notion “public interests” thus conditions of the civil service, too, are understood differently in various states. It was noted in the decisions of the European Court of Human Rights that the notion “in the public interest” is inevitably broad. The Court, bearing in mind that the opportunity of choice granted to the legislator who implements social and economic policy must be broad enough, will take into consideration the decisions of the legislator in defining “public interests” save the said decisions were unsubstantially grounded. Seizure of property, when implemented for the success of legal-social and economic policy, may be justified by “public interests” even when the whole society does not make direct use of the seized property (the cases James and others against the United Kingdom
of the Law on Officials sets down special prohibitions which differ by their character from the aforementioned general requirements and prohibitions. The prohibitions consolidated in disputed Item 2 of
of the aforesaid law permit to presume that the owner of a private enterprise, a full member or a silent partner of a partnership, as well as a person who has acquired more than 10 % of securities of one enterprise and who wishes to take office in the civil service, must restrict his ownership rights. Thus by the disputed legal norm citizens are differentiated into:
. The latter citizens acquire equal opportunities to take office in the civil service of the Republic of Lithuania only when they refuse the aforementioned possessions or limit them within the boundaries provided by the law. The norm of
of the Constitution, whereby citizens shall have the equal opportunity to serve in a State office of the Republic of Lithuania, may not be denied by legal norms contrary to the Constitution. Meanwhile, citizens seeking to implement the right granted to them by
of the Constitution must, due to the prohibitions established by Item 2 of
(except for the prohibition of the said item to hold securities on trust), deny their another constitutional right - the right to property. The Constitutional Court has already held in the present ruling that the prohibition prescribed in Item 2
of the Law on Officials stipulating that officials shall be prohibited from being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring or holding in trust more than 10 % of securities of one enterprise contradicts Article 23 of the Constitution. Taking account of these circumstances and the motives set forth, as well as the fact that the Constitution is an integral and directly applicable act, the Constitutional Court has concluded that the prohibition prescribed by Item 2
of the Law on Officials stipulating that officials shall be prohibited from being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring more than 10% of securities of one enterprise contradicts
and
The Constitutional Court has also noted in the present ruling that the prohibition for officials to hold in trust more than 10 % of securities of one enterprise which is established in Item 2 of
of the Law on Officials is in compliance with Article 23 of the Constitution as in this particular case an official manages not his property but that of another person. The legislator, on the grounds of the public interest, may establish conditions for the civil service which must be in conformity with the Constitution. Thus it is to be concluded that the said prohibition is in compliance with
and
Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law of the Republic of Lithuania on the Constitutional Court, the Constitutional Court has passed the following ruling: 1. To recognise that the prohibition prescribed by Item 2 of
of the Law on Officials stipulating that officials shall be prohibited from being the owner of a personal enterprise, or full members or silent partners of a partnership, acquiring more than 10 % of securities of one enterprise contradicts Article 23,
and
2. To recognise that prohibition for officials to hold in trust more than 10 % of securities of one enterprise which is established in Item 2 of
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: Egidijus Jaraðiûnas Kæstutis Lapinskas Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Pranas Vytautas Rasimavièius Juozas Þilys
DI paaiškinimas pagal oficialų įstatymo tekstą. Orientacinis, nepakeičia teisinės konsultacijos.