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Content updated: 21-05-2019 13:11

The Law on the Government is not in conflict with the Constitution after the material liability of a minister, whose establishment is mandatory under the Constitution, has been entrenched in another legal act

08-03-2018

By its ruling passed today, the Constitutional Court has recognised that the Law on the Government, insofar as it does not provide for the material liability of a minister for direct material damage inflicted on a state institution or establishment in the course of exercising in an unlawful and faulty manner the powers of the internal administration of the ministry or of establishments under the ministry (among others, when imposing official penalties), is not in conflict with the Constitution.

The Constitutional Court noted, in particular, that ministries are state governance institutions that have a special competence; their establishment or abolishment is aimed at organising governance in various areas. In the activities of ministries, in addition to the performance of state functions entrusted to them, there are also other activities related, among other things, to the performance of internal administrative functions. The competence of a minister to head his/her ministry, which is consolidated in Paragraph 1 of Article 98 of the Constitution, also includes certain powers of the internal administration of the ministry and of establishments assigned to the area entrusted to the ministry (establishments under the ministry), including the right to select, in the manner prescribed in laws and other legal acts, employees of the ministry and heads of establishments under the ministry, to recruit and dismiss them, as well as the right to apply disciplinary measures to them or provide them with incentives. Therefore, it is not allowed to establish such a legal regulation that would in general prevent a minister from exercising his/her constitutional powers; in addition, the said legal regulation must not restrict the ability of the minister to effectively control how the ministry for which he/she is responsible performs its functions, as well as how it carries out other activities (among others, internal administration) that are related to the functions entrusted to him/her.

However, under the Constitution, a minister also bears responsibility, which is envisaged in the Constitution, for ensuring the implementation of constitutional powers. The Constitutional Court has noted that the Constitution is supreme law that limits state power and consolidates the principle of responsible governance, which implies that all state institutions and officials must follow the Constitution and law while performing their functions and, by acting in the interests of the Nation and the State of Lithuania, must properly exercise the powers conferred on them by the Constitution and laws. Revealing the content of the principle, stemming from the Constitution, of the transparency of the activity of state institutions and officials, the Constitutional Court emphasised that it implies, among other things, accountability to the relevant community and the responsibility of decision-making officials for their decisions and that it is a necessary precondition for preventing the abuse of power; thus, the said principle is a necessary precondition for people to have confidence in public authorities and the state in general. Transparency also implies that the decisions adopted by state officials (and ministers) must be legitimate, grounded, and clear so that, if need may be, it must be possible to rationally reason them and that other persons could have a possibility of challenging the said decisions in accordance with an established procedure.

In this ruling, the Constitutional Court noted that the Constitution consolidates the political responsibility of ministers to the Seimas, the President of the Republic, and the Prime Minister for directing the areas of governance entrusted to them, and that Article 100 of the Constitution provides for the immunity of ministers when criminal liability or the restriction of liberty is applied. The Constitution does not contain other provisions that would establish the exclusive status of ministers; therefore, there are no grounds for stating that ministers are subject to other rules of legal liability than other persons (except for the immunity provided for in Article 100 of the Constitution). A different interpretation of the Constitution, according to which, purportedly, ministers and other persons would be subject to different rules of legal liability, would be inconsistent with the responsibility (entrenched in the Constitution) of the authorities to the public, would be inconsistent with the Constitution, the provisions of Paragraphs 2 and 3 of Article 5 thereof, as well as with the constitutional principles of responsible governance and a state under the rule of law, and would imply the privilege prohibited under Paragraph 2 of Article 29 of the Constitution.

In the opinion of the petitioner, under the Constitution, the Law on the Government, which regulates the competence, liability, and accountability of ministers, should establish the material liability of a minister for direct material damage inflicted on a state or municipal institution or establishment in the course of carrying out in an unlawful and faulty manner the internal administration of the ministry, among other things, when imposing official penalties. Thus, the petitioner raised the issue of a legislative omission (a legal gap prohibited by the Constitutional), i.e. it impugned not the existing norms of the Law on the Government, but the fact that the Law on the Government did not establish the material liability of ministers, which, in its opinion, should have been established precisely in this law. However, as interpreted by the Constitutional Court, if a concrete law does not contain a special legal regulation designed for governing certain relations, it does not mean that there is a legal gap, among other things, a legislative omission, in that area, since such relations can be regulated by means of other laws.

According to the constitutional principles of responsible governance and a state under the rule of law, if state officials, including ministers, when improperly exercising the powers conferred on them by the Constitution and laws, by their unlawful actions (or inaction) inflict material and/or moral damage on persons, such their actions cannot be equated with actions (or inaction) of the state itself (or institutions thereof). State officials, including ministers, who have inflicted damage, must be liable in the prescribed manner for their actions that have caused damage. Under the Constitution, Paragraph 3 of Article 5 thereof (the scope of power is limited by the Constitution), Paragraph 2 of Article 30 thereof (compensation for material and moral damage inflicted upon a person is established by law), Paragraph 2 of Article 128 thereof (the procedure for the possession, use, and disposal of state-owned property is established by law), as well as under the constitutional principles of responsible governance and a state under the rule of law, while ensuring the proper observance of the interests of all society, it is necessary to create the preconditions for the state that has fulfilled its constitutional duty to compensate a person for material and/or moral damage inflicted by unlawful actions (or inaction) of its institutions and officials, including ministers, for obtaining reimbursement for the losses (in whole or in part), suffered by the state due to this, from the state officials, including ministers, who have improperly exercised the powers conferred on them by the Constitution and laws.

Under the Constitution, a person who has suffered material and/or moral damage as a result of unlawful actions by state institutions and officials must be compensated while taking into account reasonable and grounded criteria, as established by law, in order to determine the size of this damage. These criteria are also applicable to regulating by law the obligation of the state to compensate for damage as a result of unlawful actions carried out by a minister in the course of exercising his/her powers of the internal administration of the ministry and of establishments assigned to the area entrusted to the ministry, as well as to regulating by law the procedure for implementing the state’s right of recourse against the person – the minister – who caused the damage.

The Constitutional Court found that the Law on the Government in fact does not regulate the material liability of ministers, nor does it establish a possibility of applying the legal regulation entrenched in the Labour Code and the Law on State Service in solving the issue of compensation for direct material damage inflicted on a state institution or establishment by unlawful actions of a minister in the course of exercising the powers of the internal administration of the ministry or of establishments under the ministry, inter alia, when imposing official penalties. However, in the light of the legal regulation established in the Law on Public Administration, the provisions of the Civil Code (including Paragraph 1 of Article 6.280 thereof, according to which the state who has compensated the relevant persons for damage caused by its official receives a right of recourse against the person – the minister – by whom the damage was caused) are applicable to the material liability of ministers. The procedure for implementing the state’s right of recourse against a person who caused damage is detailed in the Law on Compensation for Damage That Appeared Due to Unlawful Actions of State Institutions and on Representing the State and the Government of the Republic of Lithuania.

In view of this fact, the Law on the Government does not contain the legislative omission that was specified the petitioner. Therefore, the Law on the Government to the specified extent is not in conflict with Paragraph 3 of Article 5 and Paragraph 2 of Article 30 of the Constitution, as well as the constitutional principles of responsible governance and a state under the rule of law.

As the material liability of ministers is regulated by means of laws (the Civil Code and the Law on Compensation for Damage That Appeared Due to Unlawful Actions of State Institutions and on Representing the State and the Government of the Republic of Lithuania), the Constitutional Court also held that, according to the overall legal regulation, the ministers are not unjustifiably distinguished from the heads of other institutions in the aspect of material liability for direct material damage inflicted on a state institution or establishment in the course of exercising in an unlawful and faulty manner the powers of internal administration. Like other heads of state institutions, ministers are subject to material liability established by law. In this regard, the Law on the Government is not in conflict with Paragraph 1 of Article 29 of the Constitution, which enshrines the principle of the equality of persons.

In the context of this constitutional justice case, the Constitutional Court also noted that legal certainty and clarity, which is one of the essential elements of the constitutional principle of a state under the rule of law, implies that any legal regulation is subject to certain mandatory requirements: a legal regulation must be clear and harmonious, the consistency and internal harmony of the legal system must be ensured, and legal acts may not contain provisions simultaneously regulating the same social relations in a different manner. In view of this fact, the legislature, while seeking to ensure as far as possible the coherence and internal harmony of the legal system, may implement its discretion to regulate the social relations connected with the liability of the members of the Government (the Prime Minister and ministers) for damage inflicted on persons by their actions in the course of exercising the powers of internal administration by establishing a corresponding legal regulation, for example, in the special legal act regulating the activities of the Government – the Law on the Government.