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Content updated: 21-05-2019 13:06

The provisions of the Law on State Service and those of the Law on National Conscription that establish preference for applicants who have fulfilled their military obligation to enter state service declared unconstitutional

06-06-2018

By its ruling passed today, the Constitutional Court has declared unconstitutional the provisions of Paragraph 2 of Article 11 and those of Paragraph 2 of Article 13 of the Law on State Service, which stipulate that, in recruitment for state service positions, preference must be given to applicants who have performed continuous compulsory initial military service, or who have completed basic military training, or who have performed alternative national defence service if several candidates who have taken part in a competition for the position of a career state servant or of the head of an establishment in state service receive the same assessment. The Constitutional Court has also declared unconstitutional Item 3 of Paragraph 1 of Article 41 of the Law on National Conscription, which provides in a similar manner that, in recruitment for state service positions, preference must be given to applicants who have performed continuous compulsory initial military service if several candidates who have taken part in a competition for the position of a state servant obtain identical results.

The Government, the petitioner, based its doubts about the compliance of the impugned legal regulation with the Constitution, among other things, on the fact that this legal regulation limits the opportunity to enter state service on equal terms for disabled persons and other persons who, due to their physical (or health) status, cannot perform military or alternative national defence; the same legal regulation also creates the preconditions for situations where persons who are able to perform this service and those who are unable to perform it are treated differently.

In this ruling, the Constitutional Court recalled the fact that the constitutional imperative of equal terms when entering state service implies competition between those who enter it, as well as an objective, impartial assessment and selection of those who enter state service. In addition, it was recalled that the constitutional right of a citizen to enter state service on equal terms is also connected with the constitutional principle of the equality of rights of persons, enshrined in Article 29 of the Constitution, Paragraph 1 whereof provides that all persons are equal before the law, courts, and other state institutions and officials.

In view of this, the Constitutional Court emphasised that one of the requirements (stemming from Paragraph 1 of Article 33 of the Constitution, which guarantees the right to citizens to enter state service on equal terms) for the legal regulation governing state service is equal competition between applicants. This means that those entering state service must be evaluated according to their knowledge and abilities necessary for the performance of the corresponding functions of a state servant. This also means that it is required to pay regard to the imperatives, arising from Article 29 of the Constitution, of the equality of the rights of persons, of non-discrimination, and of non-granting privileges on the grounds directly specified by the Constitution and on other constitutionally unjustifiable grounds.

The Constitutional Court noted, on the one hand, that the powers of the legislature arising from Paragraph 3 (“The organisation of national defence shall be established by law”) of Article 139 of the Constitution imply, among other things, that, having regard to the constitutional significance of military service and in order to establish an effective organisation of military service, among other things, to ensure the necessary number of citizens well trained to defend the state, the legislature may establish special guarantees for citizens who have performed military service, where the said guarantees, among other things, would encourage citizens to perform this service and would facilitate the social and economic integration of the citizens who have performed it.

On the other hand, the Constitutional Court also noted that the legislature, while regulating the relations of state service, must also pay regard to the aforementioned requirement, arising from Paragraph 1 of Article 33 of the Constitution, to ensure equal competition between persons entering state service. In this regard, when regulating the relations of entering state service, the legislature must take into account, among other things, Paragraph 2 (“The citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law”) of Article 139 of the Constitution, according to which the law may establish grounds for exemption from the duty to fulfil the military obligation where these grounds are related to objective circumstances due to which citizens cannot fulfil this obligation (among others, because of their state of health, age); in addition, citizens may be exempted from the military obligation because of their sex. In addition, according to Paragraph 2 of Article 139 of the Constitution, the law may establish grounds for deferral of, or early release from, compulsory military service or alternative national defence service, which are related to the state of health of the person or other important personal, family, or social circumstances. In view of this fact, according to the Constitution, these citizens may not be granted less favourable conditions for entering state service than those who have performed military or alternative national defence service, which has been established by law. It should be noted that especially those citizens who have been exempted from the military obligation by the state, such as disabled persons, women, etc., should not be placed at a disadvantage.

The Constitutional Court held in this ruling that, according to the impugned legal regulation, which is established in the Law on State Service and the Law on National Conscription, preference to be admitted to the position of a career state servant or of the head of an establishment in state service is given to persons who have performed compulsory initial military or alternative national defence service in the manner prescribed by law, however, no such preference is given to those persons applying for a position in state service who have been exempted from the military obligation owing to the fact that they are not able to fulfil this obligation for objective reasons (including disabled persons), nor is it given to those who are not obliged to perform the aforementioned service, as it has been deferred on the grounds and procedures established in the Law on National Conscription or they, before completing this service, have been released from it in prescribed cases. This means that the applicants who have been dismissed from the military obligation on the grounds provided for by law, among other things, because of their disability or sex, and those who have not performed compulsory initial military service or alternative national defence service because the state deferred them from this service on the grounds laid down by law are no longer able to compete on equal terms for a position in state service with the applicants who have performed the aforementioned service in the manner prescribed by the impugned legal regulation, since the applicant with an equal number of points who complies with the condition, established by the legislature, to perform in the prescribed manner compulsory initial military service or alternative national defence service is declared the winner.

Having regard to this, the Constitutional Court assessed such a legal regulation as one creating less favourable conditions for taking up the position of a career state servant or of the head of an establishment in state service for citizens who, on grounds established by law and due to objective circumstances, among other things, due to their state of health (including disability), age, or sex, are exempted from the military obligation, or they have been deferred from this service, or they have been released from it earlier compared to citizens who have performed this service. Thus, the legislature had not complied with the requirement, arising from Paragraph 1 of Article 33 of the Constitution, for ensuring equal competition between applicants for entering state service.

Therefore, Paragraph 2 of Article 11, Paragraph 2 of Article 13 of the Law on State Service and Item 3 of Paragraph 1 of Article 41 of the Law on National Conscription are in conflict with Article 29 of the Constitution, which establishes the principle of the equality of persons, and the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof.

Having established this, the Constitutional Court did not further investigate the compliance of the impugned legal regulation with Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law.