Year of the Constitution 2022
Titulinė skaidrė
Teismo sudėtis
Salė
Vytis
Lt Fr

News

Content updated: 17-01-2022 13:12

The provisions of the Law on State Service relating to the removal of state servants from their duties are in conflict with the Constitution

22-12-2021
Having investigated a case subsequent to an individual constitutional complaint, the Constitutional Court has recognised by means of its ruling that point 3 of paragraph 1 of Article 40 of the Law on State Service (wording of 29 June 2018) (hereinafter referred to as the Law), insofar as, under that point, if persons who make a decision to remove a state servant from duties receive the information that the state servant is suspected or accused of having committed an intentional serious or grave crime or is suspected or accused of having committed a criminal offence against state service or the public interest, they must remove him/her from his/her duties in all cases, and, in all cases, they must remove him/her from his/her duties until the end of the criminal proceedings, is in conflict with the provision of paragraph 1 of Article 33 of the Constitution “Citizens shall have the right … to enter on equal terms the State Service of the Republic of Lithuania”, the provision of paragraph 1 of Article 48 thereof “Everyone may freely choose a job”, and the constitutional principle of a state under the rule of law, and that paragraph 2 of Article 41 of the Law, insofar as, under that paragraph, the preconditions are created, in accordance with point 3 of paragraph 1 of Article 40 of the Law, not to pay remuneration for an indefinite (thus, also a long) period of time to a state servant removed from his/her duties, is in conflict with the provision of paragraph 1 of Article 48 of the Constitution “Everyone … shall have the right … to receive fair pay for work” and the constitutional principle of a state under the rule of law.

The Constitutional Court has noted that, according to the Constitution, inter alia, paragraph 1 of Article 33 thereof and the provision of paragraph 1 of Article 48 thereof “Everyone may freely choose a job”, the legislature, when regulating the relationships of state service and pursuing the constitutionally justified objective to ensure the credibility of persons holding office in state service and the authority of the institutions in which they work and that of state service as a whole, as well as the confidence of the public and citizens in the state service system, may impose the requirement relating to the reputation of such persons that they must not be suspected or accused of having committed certain criminal acts and to provide for the temporary removal of persons who do not comply with such a requirement from duties. In establishing such a requirement, the constitutional principle of proportionality must be respected, among others, the preconditions must be created for applying this measure by assessing as much as possible the individual situation of each state servant and taking into account all relevant circumstances, including the importance of the state servant’s current position in state service, the particularities of the functions performed by him/her, his/her responsibilities, and the possibility of transferring him/her to another post.

According to the assessment of the Constitutional Court, according to the Constitution, inter alia, the provision of paragraph 1 of Article 48 thereof “Everyone … shall have the right … to receive fair pay for work”, the legislature has the discretion to establish such a legal regulation under which, during a reasonable period of time, remuneration would not be paid for state servants who are temporarily removed from their duties; on the other hand, the temporary removal of a state servant who is suspected or accused of having committed a certain criminal act must not be turned into a punishment for the criminal act of which he/she is suspected or accused. Thus, the legislature, having imposed the requirement relating to the reputation of persons holding duties in state service that they must not be suspected or accused of having committed certain criminal acts and having provided for the temporary removal of persons who do not comply with such a requirement from their duties, in accordance with the Constitution, inter alia, the provision of paragraph 1 of Article 48 thereof “Everyone … shall have the right … to receive fair pay for work and social security in the event of unemployment”, the constitutional principles of justice and proportionality, taking into account the particularities of the implementation of the legal status of state servants removed from their duties, inter alia, the rights and freedoms that they have under the Constitution and laws, among others, the right to work and to receive social security in the event of unemployment, must not establish such a legal regulation under which, after a reasonable period of time laid down by the legislature after the commencement of the removal of a state servant from his/her duties, the said state servant who has been removed form his/her duties on a long-term basis will not continue to receive remuneration (or part of it), thereby failing to ensure even his/her minimum socially acceptable needs.

The Constitutional Court has also noted that, when determining the amount of remuneration for such persons, the legislature must take into account, among others, the fact that they do not perform the duties of a state servant during the period of the removal from their duties, as well as assess the extent of restrictions on the right to do other work or engage in other activities.