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Final acts

Content updated: 09-01-2020 15:47

Article 5 of the Law on the Coordination of Public and Private Interests in State Service is contrary to the constitutional principle of a state under the rule of law

19-12-2019

In its ruling passed today, the Constitutional Court has recognised that Article 5 (wording of 15 December 2015, as amended on 27 April 2017) of the Law on the Coordination of Public and Private Interests in State Service (hereinafter referred to as the Law) is in conflict with the constitutional principle of a state under the rule of law, insofar as that article does not lay down a procedure for providing the declaration of the private interests of persons who work in public establishments or associations receiving finances from the budgets and funds of the State of Lithuania and municipalities and who have administrative powers.

The Constitutional Court has stated on several occasions that the constitutional principle of a state under the rule of law is a very broad constitutional principle, which encompasses a wide range of interrelated imperatives and whose content must be disclosed in the light of the content of various other constitutional principles, such as responsible governance and other constitutional principles of no less importance. The constitutional principle of a state under the rule of law is also reflected in Paragraphs 2 and 3 of Article 5 of the Constitution, which stipulate that the scope of power is limited by the Constitution and that state institutions serve the people and which enshrine the constitutional principles of responsible governance and the responsibility of state authorities to the public.

In the context of this constitutional justice case, the Constitutional Court noted that, under the Constitution, among other things, under the provision of Paragraph 3 of Article 5 thereof that state institutions serve the people, and under the constitutional principle of responsible governance, the legislature, in order to ensure transparency and publicity in the state and municipalities, as well as in the management of other public affairs, including the prevention of corruption and abuse of power in the management of those affairs, may impose an obligation to declare private interests on various persons, including state and municipal politicians, as well as state officials exercising public authority functions, state servants, persons applying to relevant positions, and other persons whose activities are connected with the safeguarding of the public interest, among other things, with the use of funds from state and municipal budgets. In doing so, the legislature must respect the norms and principles of the Constitution, among others, the requirements arising from the constitutional principle of a state under the rule of law. It needs to be stressed that, when the legislature imposes an obligation to declare private interests on the said persons, the constitutional principle of a state under the rule of law gives rise to an obligation to establish a clear procedure for declaring such interests, so that individuals are aware of what is required by the law and are able to direct their conduct in accordance with the requirements of the law when declaring their private interests.

The Constitutional Court noted that the obligation to declare the private interests of persons who work in public establishments and associations receiving finances from the budgets and funds of the State of Lithuania and municipalities and who have administrative powers is linked not only to the discharge of duties in the performance of which they have administrative powers, but also to the fact that the public establishment or association in which they work is the recipient of finances from the budgets and funds of the State of Lithuania and municipalities. Under the general procedure for providing a declaration laid down in Paragraph 1 of Article 5 (as amended on 27 April 2017) of the Law, the obligation to provide a declaration is linked only to the date of the election, admission, or appointment of the person, i.e. this obligation is not linked to any other facts or circumstances. Moreover, neither Article 5 of the Law nor other provisions of the Law or of other laws lay down a special declaration procedure for persons who work in public establishments or associations receiving finances from the budgets and funds of the State of Lithuania and municipalities and who have administrative powers, although Article 5 of the Law establishes such a procedure for certain categories of persons. Thus, the legislature has imposed on the aforementioned persons an obligation to declare private interests, however, neither the impugned nor any other provisions of the Law or of other laws establish a procedure for providing the declarations of such persons, although, as the Constitutional Court has emphasised, this procedure must be laid down in particular in Article 5 of the Law.

In the light of the foregoing, the Constitutional Court drew the conclusion that, by failing to lay down, in Article 5 of the Law, a procedure for providing the declaration of the private interests of persons who work in public establishments or associations receiving finances from the budgets and funds of the State of Lithuania and municipalities and who have administrative powers, the legislature had failed to comply with the obligation, arising from the constitutional principle of a state under the rule of law, to establish a clear procedure for the declaration of such interests, so that individuals are aware of what is required by the law and are able to direct their conduct in accordance with the requirements of the law when declaring their private interests, and also had failed to comply with the imperatives of the consistency and internal coherence of the legal system, which arise from the constitutional principle of a state under the rule of law.