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Content updated: 24-10-2022 17:06

The provisions of the Statute of Internal Service restricting the right of a person exempted from criminal responsibility to be an official of internal service for a specified period of time were/are in conflict with the Constitution

20-10-2022

By its ruling of 20 October 2022, the Constitutional Court, having examined the case following two petitions of the Supreme Administrative Court of Lithuania (Lietuvos vyriausiasis administracinis teismas), recognised that item 2 of paragraph 2 of Article 9 of the Statute of Internal Service (wording of 29 June 2018) (hereinafter referred to as the Statute) was, and item 3 of paragraph 2 of Article 9 (wording of 23 December 2021) thereof is, in conflict with 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 of the Constitution, the provision “Everyone may freely choose a job” of paragraph 1 of Article 48 thereof, and the constitutional principle of a state under the rule of law, insofar as the condition of good repute laid down in those items was/is related to all criminal acts, without differentiating them according to their dangerousness and nature and without taking into account the grounds for exemption from criminal responsibility.

The Constitutional Court noted that the condition, consolidated in item 2 of paragraph 2 of Article 9 of the Statute, relating to the good repute of a person who, in accordance with the manner established by law, was exempted from criminal responsibility for the commission of any criminal act (except for exemption from criminal responsibility where the criminal act had lost its danger) if three years had not elapsed from the date of the exemption from criminal responsibility was applied equally to all statutory state servants, without taking into account the importance, nature, particularities of the functions performed by them, their responsibilities, or other individual circumstances that could affect the decision on the reliability of a person and his/her suitability for the post of a statutory state servant. Moreover, according to the impugned legal regulation, a person was not considered to be of good repute when he/she was exempted from criminal liability on any of the grounds for exemption from criminal responsibility provided for in the Criminal Code (except the case referred to above), i.e. without taking into account the characteristics and intention of a person who committed a criminal act to contribute to the disclosure of the criminal act or other circumstances that determined the application of a specific ground for exemption from criminal responsibility.

The Constitutional Court held that such a legal regulation was disproportionately aimed at the legitimate objective of ensuring the reliability of state officials, the authority of the institutions in which they work and of entire state service, as well as the confidence of society and citizens in the state service system, restricted the right of statutory state servants exempted from criminal responsibility for the commission of less dangerous (among others, differing in the form and gravity of guilt) criminal acts to enter state service, and thus the right to freely choose a job.

Based essentially on the same arguments, the Constitutional Court declared unconstitutional also the legal regulation laid down in item 3 of paragraph 2 (wording of 23 December 2021) of Article 9 of the Statute, replacing the legal regulation impugned by the petitioner in this constitutional justice case, according to which a person is not considered to be of good repute (thus, he/she must not be admitted to state service and, if he/she is holding duties in state service, he/she must be dismissed) in cases when he/she has been exempted from criminal responsibility for the commission of an intentional criminal act of any danger and nature during the last three years, as well as when the person has been exempted from criminal responsibility for the commission of a criminal act of any form of guilt (intentional or negligent) or of a criminal act of any danger and nature and has been imposed a criminal measure where three years have not elapsed since the execution of that measure.