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On releasing the Chairperson of the Civil Division of the Supreme Court of Lithuania from her duties

Case no 8/2020-9/2020-12/2020

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING
ON THE COMPLIANCE OF ARTICLE 1 OF THE DECREE (NO 1K-164) OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA OF 16 DECEMBER 2019 ON THE SUBMISSION TO THE SEIMAS OF THE REPUBLIC OF LITHUANIA THAT IT RELEASES THE JUSTICE OF THE SUPREME COURT OF LITHUANIA, SIGITA RUDĖNAITĖ, FROM HER DUTIES OF THE CHAIRPERSON OF THE CIVIL DIVISION OF THAT COURT AND THAT IT APPOINTS HER AS THE PRESIDENT OF THE SUPREME COURT OF LITHUANIA AND OF THE RESOLUTION (NO XIII-2848) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 21 APRIL 2020 ON THE RELEASE OF THE JUSTICE OF THE SUPREME COURT OF LITHUANIA, SIGITA RUDĖNAITĖ, FROM HER DUTIES OF THE CHAIRPERSON OF THE CIVIL DIVISION OF THAT COURT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE REPUBLIC OF LITHUANIA’S LAW ON COURTS

2 September 2020, no KT153-N13/2020
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Janina Stripeikienė, and Dainius Žalimas

The court reporter – Vaiva Matuizaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the hearing of the Court on 19 August 2020, considered, under written procedure, constitutional justice case no 8/2020- 9/2020-12/2020 subsequent to:

(1) the petition (No 1B-4/2020) of the Seimas of the Republic of Lithuania, the petitioner, set out in its resolution (No 2893) of 7 May 2020 on the application to the Constitutional Court requesting an investigation into the compliance of Article 1 of the decree (No 1K-164) of the President of the Republic of Lithuania of 16 December 2019 on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court of Lithuania and of the resolution (No XIII-2848) of the Seimas of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court with the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Courts, requesting an investigation whether:

Article 1 of the decree (No 1K-164) of the President of the Republic of Lithuania of 16 December 2019 on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court of Lithuania is in conflict with the provision of Item 11 of Article 84 of the Constitution of the Republic of Lithuania that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111 thereof and Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Republic of Lithuania’s Law on Courts insofar as, according to the petitioner, by means of the said article, it was submitted for the Seimas to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of the Supreme Court;

the resolution (No XIII-2848) of the Seimas of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court is in conflict with Paragraph 4 of Article 111 and Item 4 of Article 115 of the Constitution of the Republic of Lithuania, the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance, as well as with Paragraph 4 of Article 79, Paragraphs 1 and 3 of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Republic of Lithuania’s Law on Courts;

(2) the petition (no 1B-3/2018) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the resolution (No XIII-2848) of the Seimas of the Republic of Lithuania of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court is in conflict with Paragraphs 2 and 5 of Article 112 and Item 4 of Article 115 of the Constitution of the Republic of Lithuania, as well as with the constitutional principles of a state under the rule of law, the supremacy of the Constitution, the separation of powers, and the independence of judges and courts;

(3) the petition (no 1B-12/2020) of a group of members of the Vilnius Regional Court, the petitioner, requesting an investigation into whether the resolution (No XIII-2848) of the Seimas of the Republic of Lithuania of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court is in conflict with Paragraphs 2 and 5 of Article 112 and Item 4 of Article 115 of the Constitution of the Republic of Lithuania, as well as with the constitutional principles of a state under the rule of law, the supremacy of the Constitution, the separation of powers, the independence of judges and courts, and responsible governance.

By the Constitutional Court’s decision of 30 July 2020, the above-mentioned petitions were joined into one case, which was given reference no 8/ 2020- 9/2020-12/2020.

The Constitutional Court

has established:

I

The arguments of the petitioners

1. The petition of the Seimas, the petitioner, concerning the compliance of Article 1 of the decree (No 1K-164) of the President of the Republic of 16 December 2019 on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court of Lithuania (hereinafter referred to as the decree of the President of the Republic of 16 December 2019) with the Constitution and the law on Courts is substantiated on the following arguments.

1.1. According to the petitioner, by his decree of 16 December 2019, having regard to the advice of the Judicial Council presented in the resolution (No 13P-208-(7.1.2)) of 16 December 2019 on advising the President of the Republic of Lithuania to submit that the Seimas releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court and to propose that the Seimas appoints her for the position of the President of this Court, the President of the Republic submitted to the Seimas that it performs two different legal actions: releases the justice of the Supreme Court of Lithuania (hereinafter referred to as the Supreme Court), Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and appoints her as the President of the Supreme Court. Therefore, by this decree of the President of the Republic, it was submitted for the Seimas to release the justice of the Supreme Court, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of this Court. In the preamble to this decree, Item 3 of Paragraph 1 of Article 81 of the Law on Courts, which refers to Paragraph 1 of Article 90 of this law, and Item 4 of Paragraph 1 of Article 90 thereof, under which a judge is released from duties when he/she has been elected to another post or when he/she has been transferred to another job subject to his/her consent, are specified as the legal grounds for dismissal; no any other grounds for release of a judge from office are specified in the Constitution or the Law on Courts.

The petitioner specifies that justice Sigita Rudėnaitė held the position of the Chairperson of the Civil Division of the Supreme Court from 13 November 2017, when the resolution (No XIII-720) of the Seimas of 9 November 2017 on the appointment of the justice Sigita Rudėnaitė as the Chairperson of the Civil Division of the Supreme Court of Lithuania came into force. Therefore, according to the petitioner, by his decree (No 1K-164) of 16 December 2019, the President of the Republic submitted for the Seimas to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court before the expiry of her term of office in this position and in the absence of any other grounds for the release from the duties of the chairperson of a division of the Supreme Court provided for in the Constitution or the Law on Courts, as well as established in Item 4 of Paragraph 1 of Article 90 of the Law on Courts, which was invoked when passing this decree.

1.2. According to the petitioner, when submitting, by means of Article 1 of the decree of the President of the Republic of 16 December 2019, for the Seimas to release the Chairperson of the Civil Division of the Supreme Court from her duties without having appointed her to another position:

the requirements prescribed in Item 3 of Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts were not followed and the provision of Item 11 of Article 84 of the Constitution, under which the President of the Republic may submit that the Seimas releases judges from their duties only in cases provided for by law, Paragraph 4 of Article 111 of the Constitution, under which the procedure laid down in the Law on Courts for releasing judges from their duties must be observed by all entities that have the powers, under the Constitution and the Law on Courts, to decide on releasing judges from their duties, as well as Item 4 of Article 115 thereof, under which a judge is released from duties only after his/her appointment to another post, were violated;

upon the creation of the preconditions for the Seimas to release the justice Sigita Rudėnaitė from the duties of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal basis established in the Constitution or the Law on Courts, the constitutional principle of the independence of judges and courts was violated;

one of the essential elements of the constitutional principle of a state under the rule of law was violated – the imperative of legal certainty and legal clarity, meaning that the legal regulation established in legal acts must be clear, comprehensible, and coherent, and may not contain any ambiguities; the consistency and internal coherence of the legal system must be ensured;

the constitutional principle of responsible governance, which implies, among others, that all state institutions and officials must properly implement the powers conferred on them by the Constitution and laws was disregarded.

2. The petition of the Seimas, the petitioner, concerning the compliance of the resolution (No XIII-2848) of the Seimas of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court (hereinafter also referred to as the resolution of the Seimas of 21 April 2020) is based on the following arguments.

2.1. According to the petitioner, together with his decree of 16 December 2019, the President of the Republic also submitted to the Seimas for consideration the draft resolution (No XIIIP-4349) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania; in Article 1 of this resolution, it was provided for to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of the Supreme Court. Therefore, the decisions of the Seimas provided for in the draft resolution of the Seimas (Article 1 thereof) were formulated in the same way as the respective submissions of the President of the Republic in the aforementioned decree. At a sitting of 20 April 2020, having taken account of the comment of the Legal Department of the Office of the Seimas that appointment to duties and release from duties are two separate legal actions, the Committee on Legal Affairs of the Seimas set out these actions in separate articles of the draft resolution of the Seimas: Article 1 of the draft resolution (No XIIIP-4349(2)) of the Seimas, as improved by the committee, provided for the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of the Supreme Court, and Article 2 – the appointment of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, as the President of the Supreme Court.

2.2. According to the petitioner, taking account of the fact that it is a prerogative of the President of the Republic to submit to the Seimas the draft resolution of the Seimas on the appointment to the position of the President of the Supreme Court and the draft resolution of the Seimas on the release from the position of the Chairperson of the Civil Division of the Supreme Court, when considering the draft resolution of the Seimas submitted by the President of the Republic at the Seimas or its structural units, it could not be essentially amended, among other things, so that the adopted decisions submitted to the Seimas would be divided into two separate drafts, since such an amendment would have meant taking over the powers of the President of the Republic.

2.3. Referring to the jurisprudence of the Constitutional Court, the petitioner notes that, under the Constitution, the will of the Seimas regarding the adoption of decisions may not be expressed otherwise than by vote of members of the Seimas at a sitting of the Seimas and by the adoption of a particular legal act. According to the petitioner, after the consideration of the draft resolution (No XIIIP-4349(2)) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court, and her appointment as the President of the Supreme Court of Lithuania at the sitting of the Seimas on 21 April 2020, a secret ballot was held in which it was voted on the articles of this draft separately. The results of the secret ballot of the members of the Seimas led to the fact that, by the resolution of the Seimas of 21 April 2020, the justice of the Supreme Court, Sigita Rudėnaitė, was released from the duties of the Chairperson of the Civil Division of that court without having appointed her as the President of the Supreme Court. Therefore, according to the petitioner, the legal flawedness of the submission set out in the decree (No 1K-164) of the President of the Republic of 16 December 2019 created such a situation where, by means of the resolution of the Seimas of 21 April 2020, as adopted by secret ballot, the Chairperson of the Civil Division of the Supreme Court, Sigita Rudėnaitė, was released from duties before the expiry of her term of office in this position and in the absence of any other grounds for the release from the duties of the chairperson of a division of the Supreme Court provided for in the Constitution or the Law on Courts, as well as established in Item 4 of Paragraph 1 of Article 90 of the Law on Courts, which was invoked when submitting that the Seimas releases her.

2.4. In view of the above, in the opinion of the petitioner, the resolution of the Seimas of 21 April 2020:

disregarded the term of powers (term of office) of the chairperson of a division of the Supreme Court established in Paragraph 4 (wording of 14 January 2020) of Article 79 of the Law on Courts and, at the same time, violated the constitutional principle of the independence of judges and courts, did not ensure the protection of legitimate expectations, legal certainty and legal security, which are inseparable elements the constitutional principle of a state under the rule of law implying the duty of the state to ensure the certainty and stability of any legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil any obligations assumed to a person; therefore, it also violated the constitutional principle of a state under the rule of law;

disregarded the grounds for the release from the duties of the chairperson of a division of the Supreme Court established in Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts and, at the same time, violated Paragraph 4 of Article 111 of the Constitution, under which all entities having the powers to decide on releasing judges from their duties are obliged to observe the procedure laid down in the Law on Courts for releasing judges from their duties, Item 4 of Article 115 thereof, under which a judge is released from duties after his/her appointment to another post, as well as the constitutional principle of the independence of judges and courts;

having disregarded the aim of the President of the Republic and the Judicial Council, in accordance with Paragraph 5 of Article 112 of the Constitution, advising him/her on all issues relating to the appointment of judges, their professional career and dismissal from office, that the Chairperson of the Civil Division of the Supreme Court would be released from those duties only upon appointing her as the President of the Supreme Court, violated Paragraph 3 of Article 81 of the Law on Courts, under which the Seimas releases the Chairperson of a division of the Supreme Court upon the submission of the President of the Republic, as well as violated the constitutional principles of the separation of powers and the independence of judges and courts;

the constitutional principle of responsible governance, which implies, among others, that all state institutions and officials must properly implement the powers conferred on them by the Constitution and laws was disregarded.

3. The petition of the group of members of the Seimas concerning the compliance of the resolution of the Seimas of 21 April 2020 with the Constitution is based on the following arguments.

3.1. According to the petitioner, Paragraphs 2 and 5 of Article 112 of the Constitution establish the specific procedure of the appointment and release of the justices and the President of the Supreme Court (this procedure, inter alia, also applies to the appointment of chairpersons of divisions), in which the President of the Republic (proposes candidates for the posts of justices and chairpersons of this court), the self-government institution of the judiciary, the Judicial Council (advising the President of the Republic to appoint or dismiss justices of this court), and the legislative power, the Seimas (appoints and dismisses the justices and chairpersons of this court) participate. Although the Constitution does not expressis verbis provide for the procedure of the appointment and release of the chairperson of a division of the Supreme Court, in its ruling of 21 December 1999, the Constitutional Court specified that the legislature may, by means of laws, provide for such positions and establish the procedure for appointing persons to them; when establishing these positions, the legislature is bound by the balance between state powers as consolidated in the Constitution, inter alia, Article 5 thereof, and the principle of the independence of judges and courts as consolidated in Paragraph 2 of Article 109 thereof. When appointing or releasing a justice of the Supreme Court, the President of this court, or the chairperson of a division thereof, Paragraphs 2 and 5 of Article 112 of the Constitution would be applied systematically in conjunction with the grounds for releasing judges, which are consolidated in Article 115 of the Constitution.

The grounds for releasing judges, which are consolidated in Article 115 of the Constitution, determine the fact that the Seimas has no constitutional powers to release the chairperson of a division of the Supreme Court from duties and not to appoint him/her, at the same time, as the President of the Supreme Court. This is because, according to the petitioner, the Constitution and the Law on Courts implementing it, does not provide for any possibility to release the chairperson of a division of the Supreme Court on grounds other than those laid down in Article 115 of the Constitution.

3.2. Both the decree of the President of the Republic of Lithuania of 16 December 2019 and the resolution of the Judicial Council expressed the will of these entities to release the Chairperson of the Civil Division of the Supreme Court from duties only on the condition that she is appointed to the office of the President of this Court. By voting separately on Articles 1 and 2 of the resolution of the Seimas of 21 April 2020 and thus releasing the Chairperson of the Civil Division of the Supreme Court from duties and not appointing her as the President of the Supreme Court, the Seimas adopted a resolution other than that proposed by the President of the Republic and the most important self-government judicial institution – the Judicial Council. Therefore, according to the petitioner, when dismissing the Chairperson of the Civil Division of the Supreme Court and not appointing her to another position, the Seimas had not received advice from the Judicial Council as the most important entity representing the judiciary regarding such a decision.

3.3. According to the petitioner, when releasing the Chairperson of the Civil Division of the Supreme Court in the absence of the constitutional basis, the Seimas undermined the constitutional guarantees for the independence of judges and courts because it created a political-legal situation of uncertainty when potential candidates to justices of the Supreme Court (for example, by promoting judges of the Court of Appeal of Lithuania) or to the office of the President of the Court find themselves in a situation where they can be dismissed without any constitutional ground. When the Chairperson of the Civil Division of the Supreme Court was released in the absence of the constitutional legal basis, according to the petitioner, the constitutional provision that the judiciary is formed on a professional, but not on a political basis, was denied.

4. The petition of the Vilnius Regional Court concerning the compliance of the resolution of the Seimas of 21 April 2020 with the Constitution is substantiated by the similar arguments as the petition of the group of members of the Seimas.

According to the petitioner, the adoption of the resolution of the Seimas of 21 April 2020 created such a situation where, by his decree of 16 December 2019, the President of the Republic submitted to the Seimas that it releases Sigita Rudėnaitė from her duties of the Chairperson of the Civil Division of the Supreme Court and that it appoints her as the President of this court, and, after the secret ballot held at the Seimas, Sigita Rudėnaitė was not appointed to the position of the President of the Supreme Court and she was released from her duties of the Chairperson of the Civil Division of the Supreme Court. According to the petitioner, Sigita Rudėnaitė was released from the duties of the chairperson of a division of the Supreme Court in the absence of any other grounds for the release from the duties provided for in the Constitution; moreover, in the absence of the President of the Republic’s submission or advice from the Judicial Council on release; and the voting procedure itself, after dividing the issues on which it was voted, possibly implies that voting results do not reflect the real will of the members of the Seimas. Therefore, in the opinion of the petitioner, reasonable doubts arise regarding the compliance of the resolution of the Seimas of 21 April 2020 with Paragraphs 2 and 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as with the constitutional principles of a state under the rule of law, the supremacy of the Constitution, the separation of powers, the independence of judges and courts, and responsible governance.

II

The arguments of the representatives of the parties concerned

5. In the course of preparing the case for the hearing of the Constitutional Court, written explanations were received from the Head of the Private Law Unit of the Legal Department of the Office of the Seimas, Daina Petrauskaitė, acting as the representatives of the Seimas, the party concerned.

5.1. According to the representative of the party concerned, by his decree of 16 December 2019, the President of the Republic submitted to the Seimas that it releases Sigita Rudėnaitė from her duties of the Chairperson of the Civil Division of the Supreme Court and that it appoints her as the President of this court. On the same day, the draft resolution of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania was registered, Article 1 of which proposed the following: “To release the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of the Supreme Court of Lithuania”. Therefore, it was proposed, first of all, to release the justice from her duties and, only afterwards, to appoint her to another position. According to the representative of the party concerned, such proposal of the President of the Republic was not consistent with the established practice. Until then, the President of the Republic usually issued two decrees: the first decree – on the appointment to the relevant position, and, upon the appointment of a person to the said position, the second decree – on the release of the person from his/her duties upon his/her appointment to another position.

According to the representative of the party concerned, taking account of the fact that it is a prerogative of the President of the Republic to submit to the Seimas the draft resolution of the Seimas on the appointment to the position of the President of the Supreme Court and the draft resolution of the Seimas on the release from the position of the Chairperson of the Civil Division of the Supreme Court, when considering the draft resolution of the Seimas submitted by the President of the Republic at the Seimas or its structural units, it could not be essentially amended, among other things, so that the adopted decisions submitted to the Seimas, provided for therein, would be divided into two separate drafts, since such an amendment would have meant taking over the powers of the President of the Republic.

5.2. According to the representative of the party concerned, the impugned resolution of the Seimas was adopted by secret ballot at the sitting of the Seimas of 21 April 2020. It was voted on Articles 1 and 2 of this resolution separately. 68 members of the Seimas voted in favour of Article 1 (on the release), 34 voted against it, and there were 17 abstentions; 52 members of the Seimas voted in favour of Article 2 (on the appointment), 46 voted against it, and there were 23 abstentions. Thus, the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, was released from her duties of the Chairperson of the Civil Division of that court but she was not appointed as the President of that court. The representative of the party concerned recognises that the Seimas released Sigita Rudėnaitė from her duties of the Chairperson of the Civil Division of the Supreme Court before the expiry of the term of office and points out the fact that, when considering the resolution of the Seimas, attempts were made in the Seimas to avoid such a situation, but it was already determined by the decree of the President. In order to avoid such situations in the future, the State of the Seimas was amended.

5.3. The representative of the party concerned noted that after the announcement of the results of the secret vote, it was clear that an extraordinary situation had occurred and the resolution of one article of the Seimas on the release of Sigita Rudėnaitė from her duties of the Chairperson of the Civil Division of the Supreme Court was assessed as flawed by the members of the Seimas. Attempts were made to correct the situation in more than one way. It was considered on what ground the Seimas could revoke the adopted resolution of the Seimas; however, according to the representative of the party concerned, no such ground is provided for in the Statute of the Seimas.

6. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the President of the Republic, the party concerned, who were Jūratė Šovienė, the chief adviser of the President of the Republic, and adviser Elena Masnevaitė, in which it was stated that the impugned Article 1 of the decree of the President of the Republic of 16 December 2019 was not, to the specified extent, in conflict with the Constitution and the Law on Courts. The position of the representatives of the President of the Republic, the party concerned, is substantiated by the following arguments.

6.1. In the opinion of the representatives of the party concerned, the President of the Republic must apply for advice to the Judicial Council concerning the appointment, promotion, transfer of a justice of the Supreme Court, or his/her release from duties. This advice binds the President of the Republic in exercising his constitutional powers to submit that the Seimas appoints, transfers or releases from duties the President of the Supreme Court in the light of the fact that, when formulating a relevant recommendation to the Seimas, the President of the Republic is bound by the substance of the advice of the Judicial Council. In implementing its powers linked to the formation of the judiciary, the Seimas is bound by the essence of the relevant submission from the President of the Republic (which may be adopted only in accordance with the advice of a special institution of judges, which is specified in Paragraph 5 of Article 112 of the Constitution and is provided for by law – the Judicial Council): the Seimas may not deviate from the essence when it decides on the appointment, promotion, transfer of a certain judge, or his/her release from duties. Only then, according to the representatives of the party concerned, inter alia, the constitutional principle of the separation of powers consolidated in Paragraph 2 of Article 5 of the Constitution is not violated, the requirement for the Seimas to implement its powers linked to the formation of the judiciary together with the President of the Republic, which stems from the Constitution, inter alia, Item 10 of Article 67 and Paragraphs 2 and 3 of Article 112 thereof, is ensured, the constitutional powers of the President of the Republic consolidated in Paragraph 11 of Article 84 and Paragraph 2 of Article 112 are respected, the constitutional mission of the special institution of judges, as provided for by law and specified in Paragraph 5 of Article 112 of the Constitution, is not denied, and the principle the independence of judges and courts is not violated.

6.2. According to the representatives of the party concerned, in implementing his constitutional powers in the sphere of the formation of the judiciary, the President of the Republic adopts a decree in which he formulates relevant submission (on the basis of the advice of the Judicial Council) to the Seimas and attaches the draft resolution of the Seimas to the decree. In the opinion of the representatives of the party concerned, the Constitution does not consolidate and does not give rise to additional special requirements for the draft resolution of the Seimas attached to the decree of the President in which the relevant submission is formulated. Having received the relevant decree of the President of the Republic and the draft resolution of the Seimas attached to it, the Seimas must start the consideration of the draft resolution of the Seimas and further implement its adoption in compliance with the rules for adopting legal acts, inter alia, the resolutions of the Seimas, as established in the Statute of the Seimas. In all cases, the final decision on the appointment of a justice or the President of the Supreme Court or his/her release is adopted namely by the Seimas. In adopting the said final decision, the Seimas must not distort the essence of the submission of the President of the Republic. According to the representatives of the party concerned, the Statute of the Seimas does not consolidate additional (with the exception of those linked to the deliberation of candidates themselves) particularities of the deliberation and adoption of the draft resolutions of the Seimas submitted by the President of the Republic in implementing his powers to submit that the Seimas appoints, transfers or releases from duties the President of the Supreme Court, as compared to the particularities prescribed for the deliberation and adoption of other legal acts.

6.3. In the opinion of the representatives of the party concerned, although chairpersons of courts, their deputies and chairpersons of divisions are the judges of courts holding other offices in these courts assigned to perform certain additional functions related to management of the court; however, the Constitution does not provide for, among others, the positions of chairpersons and the procedure for their appointment and release from duties unlike the positions of presidents of courts and the procedure for their appointment and dismissal from duties. The Constitution also does not provide for the position of the chairpersons of the divisions of the Supreme Court, therefore, if they were provided for accordingly in the Law on Courts, also the procedure and grounds for appointing persons to these positions had to be established in this law. Therefore, when deciding on the release of the justice from his/her duties of the Chairperson of the Civil Division of of the Supreme Court of Lithuania, i.e. on his/her release from other duties in the court, the procedure and grounds laid down in the Law on Courts must be followed.

The submission to the Seimas formulated in the decree of the President of the Republic of 16 December 2019 (which is presented accordingly also in the draft resolution of the Seimas attached to this decree) may not be interpreted in isolation from the legal grounds for its adoption as specified in the preamble to this decree. Taking into account the legal grounds for the adoption of the decree of the President of the Republic of 16 December 2019 specified in the preamble thereto and the submission to the Seimas formulated in this decree, it is clear that this decree was adopted by the President of the Republic after having received relevant advice of the Judicial Council and having implemented the powers to submit to the Seimas a candidate for the post of the President of the Supreme Court stemming from Item 11 of Article 84 of the Constitution, as well as his relevant powers to submit that the Seimas releases, on the grounds established in the Law on Courts, the justice of the Supreme Court from the position of the Chairperson of the Civil Division of that court, i.e. from her other duties in the same court. The decree of the President of the Republic of 16 December 2019 includes the legal ground for the release of the justice of the Supreme Court from her duties of the Chairperson of the Civil Division of of the Supreme Court of Lithuania, i.e. from her other duties in that court – her appointment as the President of the Supreme Court, i.e. her appointment to another position in the same court.

Therefore, in the opinion of the representatives of the party concerned, based on the systemic interpretation of the provisions of the decree of the President of the Republic of 16 December 2019, the essence of the submission of the President of the Republic to the Seimas formulated in this decree is the appointment of the justice of the Supreme Court, Sigita Rudėnaitė, to another position in the same court – to the position of the President of the Supreme Court, which implies her release from her other duties in that court – from the position of the Chairperson of the Civil Division of the Supreme Court, since there may be no such a situation where the President of the Supreme Court would hold another office in the same court. Respectively, any other, inter alia, solely linguistic interpretation of the submission formulated in the decree of the President of the Republic of 16 December 2019 would not, in the opinion of the representatives of the party concerned, be in line with the essence of the submission of the President of the Republic. In the opinion of the representatives of the party concerned, the Constitution does not establish and the official constitutional doctrine does not reveal any special requirements for the submissions of the President of the Republic when the Seimas is submitted to appoint a justice of the Supreme Court to another duties in that court.

6.4. The representatives of the party concerned also note that although it is specified in the preamble to the resolution of the Seimas of 21 April 2020 that it had been adopted in view of the decree of the President of the Republic of 16 December 2019, by this decree, it was not submitted for the Seimas to release the justice of the Supreme Court, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of this court. The submission to the Seimas formulated in the decree of the President of the Republic of 16 December 2019 was, by essence, the proposal to appoint the justice of the Supreme Court, Sigita Rudėnaitė, to another position in the same court – to the position of the President of the Supreme Court, which implies her release from her other duties in that court – from the position of the Chairperson of the Civil Division of the Supreme Court. Whereas, by adopting the resolution of 21 April 2020, the Seimas decided to release the justice of the Supreme Court, Sigita Rudėnaitė, from her other duties in that court – from the position of the Chairperson of the Civil Division on the ground other than that specified in the decree of the President of the Republic of 16 December 2019 (after having appointed her to another position in the same court – to the position of the President of the Supreme Court); therefore, according to the representatives of the party concerned, the Seimas derogated from the essence of the submission of the President of the Republic. According to the representatives of the party concerned, by its resolution of 21 April 2020, the Seimas released the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court in the absence of, in general, any grounds for the release from the duties established in the Law on Courts.

The Constitutional Court

holds that:

I

The scope of investigation

7. As mentioned before, the Seimas, the petitioner, requests an investigation into whether:

Article 1 of the decree of the President of the Republic of 16 December 2019 is in conflict with the provision of Item 11 of Article 84 of the Constitution that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111, and Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, insofar as, according to the petitioner, by means of the said article, it was submitted for the Seimas to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of the Supreme Court;

the resolution of the Seimas of 21 April 2020 is in conflict with Paragraph 4 of Article 111 and Item 4 of Article 115 of the Constitution, the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance, as well as with Paragraph 4 of Article 79, Paragraphs 1 and 3 of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

Thus, the Seimas, the petitioner, requests an investigation into the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019, to the specified extent, with, inter alia, Item 3 of Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, as well as the compliance of the resolution of the Seimas of 21 April 2020 with, inter alia, Paragraph 4 of Article 79, Paragraphs 1 and 3 of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts; however, the petitioner does not specify the wordings of Paragraph 4 of Article 79, Paragraph 1 (inter alia, Item 3 thereof) and Paragraph 3 of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts the investigation of the compliance of the which is requested.

It is obvious from the petition that the petitioner had doubts as to whether Article 1 of the decree of the President of the Republic of 16 December 2019, to the specified extent, was in conflict with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts (wording of 24 January 2002) (hereinafter referred to as the Law on Courts), as well as to whether the resolution of the Seimas of 21 April 2020 was in conflict with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 April 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

8. It has been mentioned that the group of members of the Seimas, the petitioner, requests an investigation into whether he resolution of the Seimas of 21 April 2020 is in conflict with Paragraphs 2 and 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as with the constitutional principles of a state under the rule of law, the supremacy of the Constitution, the separation of powers, and independence of judges and courts.

It has also been mentioned that the Vilnius Regional Court, the petitioner, requests an investigation into whether the resolution of the Seimas of 21 April 2020 is in conflict with Paragraphs 2 and 5 of Article 112 and Item 4 of Article 115 of the Constitution, as well as with the constitutional principles of a state under the rule of law, the supremacy of the Constitution, the separation of powers, the independence of judges and courts, and responsible governance.

Thus, the group of members of the Seimas and the Vilnius Regional Court, the petitioners, request an investigation into the compliance of the resolution of the Seimas of 21 April 2020 not only with Item 4 of Article 115 of the Constitution, and the constitutional principles of a state under the rule of law, the separation of powers, the independence of judges and courts, and responsible governance, but also with Paragraphs 2 and 5 of Article 112 and the constitutional principle of the supremacy of the Constitution.

9. The group of members of the Seimas and the Vilnius Regional Court, the petitioners, impugn the compliance of the resolution of the Seimas of 21 April 2020, inter alia, with the constitutional principles of s state under the rule of law and the supremacy of the Constitution.

The Constitutional Court has held on more than one occasion that, the principle of the supremacy of the Constitution, which is established in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle, upon which the entire Lithuanian legal system and the Constitution itself are based; Violation of the principle of the supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well (inter alia, the Constitutional Court’s rulings of 24 December 2002, 5 March 2004, and 10 November 2014).

Therefore, the petitions requesting to investigate the compliance of the resolution of the Seimas of 21 April 2020, inter alia, with the constitutional principles of a state under the rule of law and the supremacy of the Constitution should be treated as the petitions requesting to investigate its compliance with the constitutional principle of a state under the rule of law.

10. Thus, under of the petitions, in the constitutional justice case at issue, the Constitutional Court will investigate whether:

Article 1 of the decree of the President of the Republic of 16 December 2019 is in conflict with the provision of Item 11 of Article 84 of the Constitution that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111 thereof, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, insofar as, according to the petitioner, by means of the said article, it was submitted for the Seimas to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of the Supreme Court;

the resolution of the Seimas of 21 April 2020 is in conflict with Paragraph 4 of Article 111 and Paragraphs 2 and 5 of Article 112, and Item 4 of Article 115 of the Constitution, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

II

Impugned legal acts

11. On 16 December 2019, the President of the Republic adopted the decree (No 1K-164) on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court, Article 1 whereof, which is impugned in this constitutional justice case, establishes the following:

Conforming to Item 11 of Article 84 and Paragraphs 2 and 5 of Article 112 of the Constitution of the Republic of Lithuania and Paragraphs 1, 3, and 4 of Article 79, Item 3 of Paragraph 1 and Paragraphs 3 and 7 of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Republic of Lithuania’s Law on Courts, and having regard to the advice of the Judicial Council,

I h e r e b y s u b m i t to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court.”

Thus, the submission was formulated in Article 1 of the decree of the President of the Republic of 16 December 2019 to the Seimas that it takes two interrelated decisions: first, to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court, and, second, to appoint her as the President of that court.

11.1. As it is specified in Article 1 of the decree of the President of the Republic of 16 December 2019, such submission of the President of the Republic to the Seimas that it takes two interrelated decisions (to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of that court) is based on the following provisions of the Constitution and the Law on Courts:

Item 11 of Article 84 of the Constitution, which, inter alia, establishes that, on the appointment of all the justices of the Supreme Court, the President of the Republic proposes the candidate from among them for the post of the President of the Supreme Court to be appointed by the Seimas; in cases provided for by law, the President of the Republic also submits that the Seimas releases justices from their duties;

Paragraph 2 of Article 112 of the Constitution, which establishes that the justices of the Supreme Court, as well as its President chosen from among them, are appointed and released by the Seimas upon submission by the President of the Republic;

Paragraph 5 of Article 112 of the Constitution, which provides that a special institution of judges, as provided for by law, advises the President of the Republic on the appointment, promotion, and transfer of judges, or their release from duties;

Paragraph 1 of Article 79 (wording of 19 April 2007) of the Law on Courts, under which the Seimas appoints the President of the Supreme Court from among its justices upon submission by the President of the Republic;

Paragraph 3 of Article 79 (wording of 19 April 2007) of the Law on Courts, under which the President of the Supreme Court and the chairperson of a division of the Supreme Court are appointed for a period of five years;

Paragraph 4 of Article 79 (wording of 19 April 2007) of the Law on Courts, under which candidates to the office of the President of the Supreme Court and the Chairperson of a division of the Supreme Court are considered by the Judicial Council in accordance with the procedure set out in Paragraphs 3–6 of Article 56 of this Law;

Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts, under which, inter alia, the President of the Supreme Court is released from duties in the cases of removal of a judge from office as specified in Paragraph 1 of Article 90 of this Law, and Item 4 of Paragraph 1 of Article 90, under which a judge is released from duties when he/she has been elected to another post or when he/she has been transferred to another job subject to his consent;

Paragraph 3 (wording of 19 April 2007) of Article 81 of the Law on Courts, under which the President of the Supreme Court is released from duties by the Seimas upon submission by the President of the Republic;

Paragraph 7 (wording of 3 July 2008) of Article 81 of the Law on Courts, under which, inter alia, the President of the Republic is advised on the release of the Chairperson of a division of the Supreme Court from duties by the Judicial Council (except the cases when the judge is appointed as a justice of the Constitutional Court or a member of the Government).

11.2. As it is specified in Article 1 of the decree of the President of the Republic of 16 December 2019, the submission of the President of the Republic to the Seimas that it takes two interrelated decisions (to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of that court) is formulated taking account of the advice of the Judicial Council.

In this context, it should be noted that, on 16 December 2019, the President of the Republic adopted the decree (No 1K-162) on the application to the Judicial Council in which, conforming to Paragraph 5 of Article 112 of the Constitution, he asked the Judicial Council “to advice on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of this court and that it appoints her as the President of the Supreme Court of Lithuania”.

On 16 December 2019, the Judicial Council adopted the resolution (No 13P-208-(7.1.2)) on advising the President of the Republic of Lithuania to submit that the Seimas releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court and to propose that the Seimas appoints her as the President of this Court, whereby, taking account of the decree (No 1K-162) of the President of the Republic of 16 December 2019 and conforming to Paragraph 7 of Article 81, Paragraph 4 of Article 79, Item 4 of Paragraph 1 and Paragraph 7 of Article 90, and Item 4 of Article 120 of the Law on Courts, and having evaluated the personal and professional qualities of justice Sigita Rudėnaitė, decided the following: “To advice the President of the Republic to submit to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court of Lithuania.”

11.3. It should be noted that together with the decree of the President of the Republic of 16 December 2019, draft resolution (No XIIIP-4349) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania was also submitted to the Seimas (registered at the Seimas on 16 December 2019), Article 1 of which established the following: “To release the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of the Supreme Court of Lithuania.”

11.4. In interpreting Article 1 of the decree of the President of the Republic of 16 December 2019, it should be noted that:

it implemented the constitutional powers of the President of the Republic (consolidated in Item 11 of Article 84 and Paragraphs 2 and 5 of Article 112 of the Constitution) concretised in (Paragraphs 1, 3 and 4 of Article 79 (wording of 19 April 2007), Item 3 of Paragraph 1 (wording of 3 July 2008), Paragraph 3 (wording of 19 April 2007), and Paragraph 7 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90) the Law on Courts, taking into consideration the advice of a special institution of judges provided for by law – the Judicial Council – to propose the candidate from among the justices of the Supreme Court for the post of the President of the Supreme Court to be appointed by the Seimas, as well as to release from duties the Chairperson of the division of the Supreme Court only upon his/her appointment to another position;

it took into account the Judicial Council’s advice to the President of the Republic to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of the Supreme Court, formulated according to the wording of the request presented in the decree (No 1K-162) of the President of the Republic of 16 December 2019 on the application to the Judicial Council;

it formulated the proposal that the Seimas adopts, by means of a single decision, two interrelated decisions – to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of that court, i.e. it was proposed that the Seimas takes both decisions together as a single decision.

12. On 21 April 2020, the Seimas adopted the impugned resolution (No XIII-2848) on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court, whic established the following:

Conforming to Item 10 of Article 67 and Paragraph 2 of Article 112 of the Constitution of the Republic of Lithuania and having regard to the decree (No 1K-164) of the President of the Republic of 16 December 2019 on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court and that it appoints her as the President of the Supreme Court of Lithuania, the Seimas of the Republic of Lithuania r e s o l v e s: 

Article 1.

To release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of the Supreme Court of Lithuania.”

Thus, by means of Article 1 of the resolution of the Seimas of 21 April 2020, the Seimas released the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court.

12.1. As it is specified in the preamble to the resolution of the Seimas of 21 April 2020, such a decision of the Seimas (to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of the Supreme Court of Lithuania) is substantiated by the following provisions of the Constitution:

Item 10 of Article 67, under which the Seimas appoints, inter alia, the justices and President of the Supreme Court;

Paragraph 2 of Article 112, which establishes that the justices of the Supreme Court, as well as its President chosen from among them, are appointed and released by the Seimas upon submission by the President of the Republic.

12.2. As it is specified in the preamble to the resolution of the Seimas of 21 April 2020, such a decision of the Seimas (to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court) was adopted in view of the decree of the President of the Republic of 16 December 2019. As mentioned before, in Article 1 of the decree of the President of the Republic of 16 December 2019, the proposal was formulated that the Seimas adopts, by means of a single decision, two interrelated decisions – to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of that court, i.e. it was proposed that the Seimas takes both decisions together as a single decision.

12.2.1. Interpreting the resolution of the Seimas of 21 April 2020, consideration should be given to its travaux préparatoires. In this context, the following circumstances linked to the adoption of the resolution of the Seimas of 21 April 2020 should be mentioned:

as mentioned before, together with the decree of the President of the Republic of 16 December 2019, draft resolution (No XIIIP-4349) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania was also submitted to the Seimas (registered at the Seimas on 16 December 2019), Article 1 of which established the following: “To release the justice of the Supreme Court of Lithuania, Sigita RUDĖNAITĖ, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of the Supreme Court of Lithuania”;

on 17 December 2019, the Legal Department of the Office of the Seimas presented the conclusion (No XIIIP-4349) on the draft resolution of the Seimas of the Republic of Lithuania on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania, where, having assessed the compliance of this draft resolution with the Constitution, laws, law-making principles, and the rules of legal technique, and taking into account the fact that the appointment to duties and release from duties are two separate legal actions, the Legal Department of the Office of the Seimas proposed to set out relevant decisions on the appointment to duties and release from them in different articles of the draft resolution;

having considered the draft resolution (No XIIIP-4349) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania, the Committee on Legal Affairs of the Seimas, as the lead committee, approved the comments of the Legal Department of the Office of the Seimas (the conclusion (No XIIIP-4349) of the Legal Department of the Office of the Seimas of 20 April 2020 on the draft resolution of the Seimas of the Republic of Lithuania on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania) and submitted to the Seimas the accordingly amended draft resolution (No XIIIP-4349(2)) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania (registered at the Seimas on 20 April 2020), Article 1 of which established the following: “To release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of the Supreme Court”, and Article 2 – “To appoint the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, as the President of the Supreme Court of Lithuania”;

during the consideration of the draft resolution (No XIIIP-4349(2)) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania at the sitting of the Seimas on 21 April 2020, it was decided to hold a secret ballot; an example of a secret ballot paper was approved (protocol No SPP-388 of the morning sitting of the Seimas of 21 April 2020). It should be noted that the examples of two secret ballot papers were approved taking into account Paragraph 2 of Article 115 “Secret ballot” (wording of 30 October 2012) of the Statute of the Seimas, which establishes that voting by secret ballot is conducted when resolving issues concerning the appointment and dismissal of justices of the Supreme Court, the President of this court, and chairpersons of the divisions of the Supreme Court, as well as Article 117 “Ballot papers” of the Statute of the Seimas (wording of 22 December 1998), under which a standard ballot paper for voting by secret ballot is approved by the Seimas prior to voting (Paragraph 1), issues concerning the dismissal of an official are voted on using ballot papers with the following words: “To dismiss” and “Not to dismiss” (Paragraph 2), and one ballot paper is used to vote on the dismissal of a single official (Paragraph 3);

during the break in the Seimas sitting, secret ballot was conducted with two ballot papers at the same time: (1) on the adoption of the draft resolution (No XIIIP-4349(2)) of the Seimas on the release of the justice of the Supreme Court, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court; (2) on the adoption of the draft resolution (No XIIIP-4349(2)) of the Seimas on the appointment of the justice Sigita Rudėnaitė as the President of the Supreme Court of Lithuania;

the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court was approved (68 members of the Seimas voted in favour, 34 voted against, and there were 17 abstentions (126 ballot papers were issued)); – the appointment of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, as the President of the Supreme Court of Lithuania was not approved (52 members of the Seimas voted in favour, 46 voted against it and there were 23 abstentions (126 ballot papers were issued)) (protocol No SPP-389 of the evening sitting of the Seimas of 21 April 2020).

Taking account of such results of the voting, only a part of the submitted draft resolution (No XIIIP-4349(2)) of the Seimas on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and her appointment as the President of the Supreme Court of Lithuania was adopted, i.e. only Article 1 thereof, in which, as mentioned before, the following was provided for: “To release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of the Supreme Court of Lithuania.”

12.2.2. Thus, it is obvious from the travaux préparatoires of the resolution of the Seimas of 21 April 2020 that, by means of that resolution (Article 1), the Seimas implemented only that part of its powers specified in the preamble of the resolution of the Seimas of 21 April 2020 that was related to the release of the Chairperson of the Civil Division of the Supreme Court from her duties (Paragraph 2 of Article 112 of the Constitution), i.e. it did not implement the powers, enshrined in Item 10 of Article 67 and Paragraph 2 of Article 112 of the Constitution, to appoint the President of the Supreme Court on the proposal of the President of the Republic. Therefore, by its resolution of 21 April 2020, the Seimas took into account only part of the proposal formulated in Article 1 of the decree of the President of the Republic of 16 December 2019 that the Seimas adopts, by means of a single decision, two interrelated decisions (to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of this court), i.e. the Seimas adopted only one of the two decisions proposed for joint adoption – released the justice of the Supreme Court, Sigita Rudėnaitė, from the duties of the Chairperson of the Civil Division of that court, but did not appoint her as the President of that court.

12.3. In this context, it should be noted that the justice of the Supreme Court, Sigita Rudėnaitė, was appointed as the Chairperson of the Civil Division of this court by the resolution (No XIII-720) of the Seimas of 9 November 2017 on the appointment of the justice Sigita Rudėnaitė as the Chairperson of the Civil Division of the Supreme Court of Lithuania (Article 1); This resolution came into force on 13 November 2017 (Article 2).

Under Paragraph 3 of Article 79 (wording of 19 April 2007) of the Law on Courts, the chairperson of a division of the Supreme Court is appointed for a period of five years.

Thus, by the resolution of the Seimas of 21 April 2020, Sigita Rudėnaitė was released from her duties of the Chairperson of the Civil Division of the Supreme Court before the expiry of the term of office in this position.

III

The legal regulation established in the Law on Courts linked with the impugned legal acts

13. In this constitutional justice case, the Constitutional Court investigates the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019 and the resolution of the Seimas of 21 April 2020 with the provisions of the Law on Courts linked to appointing the President of the Supreme Court and releasing from the duties of the chairperson of a division of this court.

14. In this context, it should be noted that under Article 22 “The Supreme Court of Lithuania” (wording of 2 June 2016) of the Law on Courts, the Supreme Court is composed of the President of the Supreme Court, chairmen of the divisions and other justices (Paragraph 1); the Supreme Court has the Civil Division and the Criminal Division (Paragraph 2).

It should also be noted that, under Article 80 “The Status of the President and Deputy President of the Court and the Chairperson of a Division of the Court”, inter alia, in administering justice, the President of the court and the chairperson of a division of the court enjoy the same rights and have the same duties as other justices (Paragraph 1); additional procedural rights and duties of the President, the Deputy President, and the Chairperson of a division of the court are established by laws (Paragraph 2), and the administrative powers are established by laws and other legal acts (Paragraph 3).

It should be noted that, under Article 103 “Internal Administration in the Court” (wording of 3 July 2008) of the Law on Courts, inter alia, the President and the Chairperson of a division of the court are officers of court who, in accordance with the procedure prescribed by this Law and other laws and other legal acts, direct the organisational work of the court (Paragraph 1). Under Paragraph 2 (wording of 22 December 2011) of this article, the President of the court assigns the judges to the divisions of the court, establishes the specialisation of the judges for hearing cases of appropriate categories, appoint them to perform the functions of a mortgage judge, approve the structure of the court; under Paragraph 4, the President of the court organises and supervises administration at the court, controls compliance with the requirements of the Code of Judicial Ethics; the President of the court reviews complaints of the persons in respect of the non-procedural actions unrelated to the administration of justice, also in respect of the acts of the court staff and reports to the interested parties the results of the review, eliminates the established shortcomings of the court, and performs other functions of court administration assigned to him; under Paragraph 5, the President of the court personally performs administrative functions assigned to him/her, however, where necessary, he/she may direct the Deputy President (chairmen of the court), the chairmen of the divisions and other judges to perform these functions.

It should also be mentioned that, under Paragraph 3 of Article 103 (wording of 3 July 2008) of the Law on Courts, the Chairperson of a division is responsible for functioning of the division of the court and a proper performance of the functions assigned to the division; in addition, the Chairperson of the division is responsible for the sphere of organisational work which is assigned to them by the President of the court or which is provided for by this Law and other statutes.

Thus, under the legal regulation established in the Law on Courts, inter alia, Paragraphs 1 and 2 of Article 22 (wording of 2 June 2016), Paragraphs 1–3 of Article 80, Paragraph 1, Paragraph 2 (wording of 22 December 2011), and Paragraphs 3–5 of Article 103 (wording of 3 July 2008) thereof, the President of the Supreme Court and the chairpersons of the Civil Division and Criminal Division of the Supreme Court are the officials of the Supreme Court who, in addition to their powers to administer justice, have additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts.

15. Article 79 “Appointment of the President of the Supreme Court and the Chairperson of a Division of the Supreme Court” (wording of 19 April 2007 with the amendments of 14 January 2020) of the Law on Courts establishes the following:

1. The Seimas shall appoint the President of the Supreme Court from among its justices upon submission by the President of the Republic.

2. The Seimas appoints the Chairperson of a division of the Supreme Court from among its justices upon submission by the President of the Republic.

3. The President of the Republic shall be advised on the appointment of the President of the Supreme Court and the Chairperson of a division thereof by the Judicial Council.

4. The President of the Supreme Court and the Chairperson of a division of the Supreme Court shall be appointed for a term of five years.”

Thus, Article 79 (wording of 19 April 2007 with the amendments of 14 January 2020) of the Law on Courts establishes the procedure for appointment of the President of the Supreme Court and the Chairperson of a division of the Supreme Court, as the officials of this court who, in addition to their powers to administer justice, have additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts: both of these officials of the Supreme Court are appointed to office by the Seimas on submission by the President of the Republic (Paragraphs 1 and 2) upon the advice by the Judicial Council (Paragraph 3) for a term of five years (Paragraph 4).

16. Article 81 “Removal from Office of the President, the Deputy President, and the Chairperson of a Division of the Court” (with the amendments of 28 April 2009) of the Law on Courts, inter alia, establishes:

1. The President, the Deputy President, and the Chairperson of a division of the court is removed from office in the following cases:

(1) upon expiry of the term in the appointed office;

(2) if during the assessment of judge’s activities, it has been established that he inappropriately performs the administrative tasks prescribed by law;

(3) in all other cases of removal of a judge from office as specified in Paragraph 1 of Article 90 of this Law.

[...]

3. The President of the Supreme Court shall be released from duties by the Seimas upon submission by the President of the Republic.

[...]

7. In respect of the removal from office of persons indicated in Paragraphs 2, 3, 4, 5 and 6 of this Article the President of the Republic shall be advised by the Judicial Council, except the cases when the judge is appointed justice of the Constitutional Court of the Republic of Lithuania or member of the Government.”

16.1. Thus, Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts establishes the grounds for the removal from office of the Chairperson of a division of the Supreme Court, as an official of this court who, in addition to the powers to administer justice, has additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts.

It should also be noted from the aspect relevant to this constitutional justice case that the President of the Supreme Court is released from duties, inter alia, under Item 1 of Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts – upon expiry of the term of the appointed office, which, as mentioned before, is five years (Paragraph 4 (wording of 14 January 2020) of Article 79), as well as under Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 – in all other cases of removal of a judge from office as specified in Paragraph 1 of Article 90 of this Law.

16.1.1. Paragraph 1 of Article 90 “Dismissal of the Judge” of the Law on Courts establishes the following:

The judge shall be dismissed in the following cases:

(1) of their own will;

(2) upon the expiry of the term of as well as the powers, or upon reaching the pensionary age established by law;

(3) due to their state of health;

(4) when the judge has been elected to another post or when he/she has been transferred to another job subject to his/her consent;

(5) when their conduct discredits the name of judges;

(6) upon the entry into effect of court judgments convicting them.”

Therefore, under Item 4 of Paragraph 1 of Article 90 of the Law on Courts, a judge is released from duties when he/she has been elected to another post or when he/she has been transferred to another job subject to his/her consent, i.e. as soon as the legal fact has taken place, in the event of appointment of a judge, inter alia, appointment to another post or transfer with his/her consent to another job.

16.1.2. It should be noted from the aspect relevant to this constitutional justice case that, under the legal regulation established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, the Chairperson of a division of the Supreme Court, as an official of this court who, in addition to the powers to administer justice, has additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts, is released from duties only after the legal fact has taken place – inter alia, upon his/her appointment to another post at the Supreme Court (the Chairperson of another division of the Supreme Court or President of the Supreme Court).

16.2. It should also be noted from the aspect relevant to this constitutional justice case that Paragraph 3 (wording of 19 April 2007) and Paragraph 7 (wording of 3 July 2008) of Article 81 of the Law on Courts establishes the procedure for releasing the chairperson of a division of the Supreme Court from his/her duties: the Chairperson of a Division of the Supreme Court is released by the Seimas upon submission by the President of the Republic (Paragraph 3 (wording of 19 April 2007) of Article 81), inter alia, on the ground established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of this law; the President of the Republic is advised on the release of the Chairperson of a division of the Supreme Court from duties, inter alia, on the ground established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of this law, by the Judicial Council (except the cases when the justice is appointed as a justice of the Constitutional Court of the Republic of Lithuania or a member of the Government) (Paragraph 7 (wording of 3 July 2008) of Article 81).

IV

The provisions of the Constitution and the official constitutional doctrine

17. In this constitutional justice case, the Constitutional Court investigates the compliance of the impugned legal acts with the provision of Item 11 of Article 84 of the Constitution that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111, Item 4, Paragraphs 2 and 5 of Article 112, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance.

18. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law is especially broad and comprises a wide range of various interrelated imperatives (inter alia, the decision of 20 April 2010 and rulings of 26 June 2017 and 28 August 2020).

18.1. As the Constitutional Court has held on more than one occasion, the principle of a state under the rule of law, which is consolidated in the Constitution, implies the hierarchy of legal acts, in which the Constitution takes an exceptional – highest – place. No legal act may be in conflict with the Constitution; no one is permitted to violate the Constitution; the constitutional order must be defended (inter alia, the rulings of 24 December 2002, 20 March 2007, and 10 November 2014). In a state under the rule of law, it is prohibited to establish such a legal regulation that might compete with the legal regulation established in higher-ranking legal acts, inter alia, with that established in the Constitution itself (decision of 20 September 2005 and rulings of 5 September 2012, and 28 August 2020).

As mentioned before, violation of the principle of the supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well.

18.2. The constitutional principle of a state under the rule of law implies various requirements for law-making subjects, including, inter alia, the fact that law-making subjects are allowed to pass legal acts only without exceeding their powers; the legal regulation laid down in laws and other legal acts must be clear, comprehensible, and coherent; the consistency and internal harmony of the legal system must be ensured (inter alia, the rulings of 13 December 2004 and 16 January 2006); a legal regulation must be clear and harmonious; legal norms must be formulated precisely and may not contain any ambiguities; legal acts may contain no provisions simultaneously regulating the same public relations in a different manner (inter alia, the rulings of 13 December 2004, 15 February 2013, and 28 August 2020).

Legal certainty, legal security, and the protection of legitimate expectations are inseparable elements of the principle of a state under the rule of law; these constitutional principles imply the duty of the state to ensure the certainty and stability of a legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil the obligations undertaken to the person; the persons have the right to reasonably expect that they will retain their rights, acquired under effective laws or other legal acts that are not in conflict with the Constitution, for the established period of time and will be able to implement these rights in reality; if legal certainty, legal security, or the protection of legitimate expectations were not ensured, the trust of a person in the state and law would not be ensured, either (inter alia, the rulings of 4 March 2003, 15 February 2013, and 25 January 2017).

18.3. The constitutional principle of a state under the rule of law is related, inter alia, to other constitutional principles such as the separation of powers and responsible governance (inter alia, the rulings of 26 May 2015, 15 February 2019, and 28 August 2020).

18.3.1. The constitutional principle of the separation of powers means that legislative power, executive power, and judicial power must be separated and sufficiently independent; there must be a balance among them (inter alia, the rulings of 14 January 2002, 13 May 2010, and 26 May 2015).

The Constitutional Court has emphasised that, according to the principle of the separation of powers, all branches of power are autonomous, independent, and capable of counterbalancing one another; the judiciary, being independent, may not be dependent on the other branches of power also because of the fact that it is the only branch of power formed on a professional, but not a political basis; the judiciary may implement its function, which is the administration of justice, only while being autonomous and independent of the other branches of power (ruling of 21 December 1999).

The Constitutional Court has noted from the aspect relevant to this constitutional justice case that the procedure for the appointment and release of judges established in a law must not violate the independence of the judiciary and the balance among state powers established in Article 5 of the Constitution (the Constitutional Court’s ruling of 21 December 1999).

18.3.2. The constitutional principle of a state under the rule of law is also reflected in Paragraph 2 of Article 5 of the Constitution, which consolidates the constitutional principles of responsible governance and stipulates that the scope of power is limited by the Constitution (inter alia, the rulings of 16 April 2019, 19 December 2019, and 12 June 2020). In interpreting Paragraph 2 of Article 5 of the Constitution in conjunction with Paragraph 3 of the same article, which states that state institutions serve the people, the Constitutional Court has noted that the Constitution is the supreme law that limits state power and consolidates the principle of responsible governance (inter alia, the ruling of 1 July 2004, the conclusion of 27 October 2010, and the ruling of 28 August 2020).

The Constitutional Court noted that the principle of responsible governance, as consolidated in the Constitution, implies that all state institutions and officials are obliged to follow the Constitution and the law while performing their functions, must properly implement the powers granted to them by the Constitution and laws by acting in the interests of the People and the State of Lithuania (inter alia, the rulings of 19 November 2015, 8 July 2016, and 12 April 2018).

The Constitutional Court has also held that, under the Constitution, inter alia, Paragraphs 2 and 3 of Article 5 thereof, the constitutional principles of responsible governance and a state under the rule of law, in implementing their functions, institutions that exercise state power must not exceed the powers conferred on them by the Constitution and laws; when exercising those powers, the said institutions must, inter alia, adopt lawful and reasonable legal acts (they must be based on the provisions of higher-ranking legal acts, as well as they must be clear and rationally reasoned, etc.) (rulings of 2 March 2018, and 28 August 2020).

19. It should be noted that also the principle of the independence of judges and courts, which is enshrined in the Constitution, should be interpreted in the context of the constitutional principle of a state under the rule of law.

The Constitutional Court has held on more than one occasion that the independence of judges and courts is not an objective in itself; it is one of the essential principles of a democratic state under the rule of law and a necessary condition of the protection of human rights and freedoms; in the course of administering justice, courts must ensure the implementation of the law formulated in the Constitution, laws, and other legal acts (inter alia, the rulings of 22 October 2007, 29 June 2010, and 8 May 2014). The independence of judges and courts is not a privilege, but one of the most important duties of judges and courts, stemming from the right, guaranteed by the Constitution (inter alia, Paragraph 2 of Article 109 thereof, as well as Paragraph 1 of Article 30 thereof, which establishes that a person whose constitutional rights or freedoms are violated shall have the right to apply to a court), of every person, who believes that his/her rights or freedoms have been violated, to have an impartial arbiter of a dispute who would, under the Constitution and laws, settle a legal dispute on the merits (inter alia, the rulings of 6 December 1995, 4 March 2003, and 9 May 2006).

19.1. Thus, the principle of the independence of judges and courts is consolidated in various provisions of the Constitution.

Paragraph 1 of Article 109 of the Constitution prescribes that, in the Republic of Lithuania, justice is administered only by courts. As the Constitutional Court has noted, the function of the administration of justice determines the independence of judges and courts (inter alia, the rulings of 12 July 2001, 13 May 2004, and 9 March 2020).

Paragraph 2 of Article 109 of the Constitution provides that, when administering justice, judges and courts are independent, and Paragraph 3 of this Article consolidates that, when considering cases, judges obey only the law. As the Constitutional Court has noted, a judge can administer justice only while being independent of the parties to a case, institutions of state power, officials, political and public associations, natural and legal persons (inter alia, the rulings of 12 July 2001, 13 May 2004, and 9 March 2020).

Paragraph 6 of Article 112 of the Constitution provides that a person appointed as a judge must, according to the procedure established by law, take an oath to be faithful to the Republic of Lithuania and to administer justice only according to the law. As the Constitutional Court has noted, judges are also obliged to be independent by their oath that they must take before entering office under Paragraph 6 of Article 112 of the Constitution; judges take an oath to be faithful to the Republic of Lithuania, to administer justice only according to the law, to defend human rights, freedoms, and legitimate interests, to act honestly and humanely all the time, and to never let their conduct discredit the name of judges (rulings of 6 December 1995, 5 February 1999, and 21 December 1999).

Paragraph 1 of Article 113 of the Constitution consolidates the incompatibility of the office of a judge with any other elective or appointive office, as well as with employment in any business, commercial, or private establishment or enterprise; judges may receive only the remuneration of a judge paid from the state budget; judges may not receive any remuneration other than the remuneration established for them and payment for educational or creative activities. As the Constitutional Court has noted, the incompatibility of the post of a judge with another office or employment is determined by the special legal situation of a judge, as well as the judiciary, as a branch of state powers; the established prohibition is aimed at ensuring the independence and impartiality of judges, which are necessary conditions for the implementation of justice (ruling of 12 July 2001 and decision of 16 May 2016).

Paragraph 1 of Article 114 of the Constitution prescribes: “Interference by any institutions of state power and governance, Members of the Seimas or other officials, political parties, political or public organisations, or citizens with the activities of a judge or court shall be prohibited and shall lead to liability provided for by law.” The prohibition against the interference with the activities of judges or courts is aimed at ensuring the independence and impartiality of judges; courts are able to administer justice only when judges can consider cases impartially, by taking account of the circumstances of cases and the requirements of laws; under the Constitution, institutions of state power and administration are not only prohibited from exerting influence on judges and courts – they are also obliged to ensure the independence of judges and courts (ruling of 12 July 2001).

19.2. Taking account of the striving, consolidated in the Preamble to the Constitution, for an open, just, and harmonious civil society and a state under the rule of law, Article 5 of the Constitution, as well as the norms of other articles thereof establishing the separation of powers, it is possible to distinguish two inseparable aspects of the principle of the independence of judges and courts – procedural and institutional (rulings of 21 December 1999 and 27 November 2006).

Procedural independence means the independence of both judges and courts that administer justice. The procedural independence of a judge is a necessary condition for an impartial and fair consideration of a case (ruling of 21 December 1999).

The institutional independence means the independence of the system of courts from the legislative and the executive powers. Judges and courts are not sufficiently independent if the independence of courts as the system of the institutions of the judiciary is not ensured (ruling of 21 December 1999). The Constitutional Court has held on more than one occasion that the full role and independence of the judiciary imply its self-regulation and self-government, which includes, inter alia, the organisation of the work of courts and the activities of the professional corps of judges (inter alia, the rulings of 21 December 1999 and 9 May 2006). The organisational independence of courts and their self-government are the main guarantees of the actual independence of the judiciary; the constitutional duty of other state institutions is to respect the independence of courts, which is established in the Constitution (ruling of 21 December 1999).

It needs to be noted that the activities of courts are guaranteed by the Constitution, as well as by laws and other legal acts that are in conformity with the Constitution (ruling of 21 December 1999). Thus, the independence and impartiality of judges and courts are ensured by consolidating, in the Constitution and laws, the independence of the system of courts from the legislative and the executive powers, by consolidating the procedural independence of judges, the organisational autonomy and self-government of courts, the status of judges, the inviolability of the person of a judge, the immunities of judges, the inviolability of the term of powers of judges, the social (material) guarantees of judges, and by consolidating the prohibition against any interference with the activity of judges or courts by state institutions, members of the Seimas, other officials, political parties, political and public organisations, as well as citizens; the independence and impartiality of judges and courts are also ensured by means of other guarantees established in the Constitution and laws (ruling of 27 November 2006).

19.3. The constitutional principle of the independence of judges and courts is also reflected in the provisions of the Constitution relevant for this constitutional justice case.

19.3.1. Item 11 of Article 84 of the Constitution provides that the President of the Republic, inter alia, proposes candidates for the posts of the justices of the Supreme Court for consideration by the Seimas and, on the appointment of all the justices of the Supreme Court, proposes the candidate from among them for the post of the President of the Supreme Court to be appointed by the Seimas; in cases provided for by law, the President of the Republic also submits that the Seimas releases judges from their duties. It should be noted that the right of the President of the Republic consolidated in Item 11 of Article 84 of the Constitution, inter alia, to propose candidates for the posts of the justices of the Supreme Court for consideration by the Seimas, to propose the candidate for the post of the President of the Supreme Court to be appointed by the Seimas, and to submit that the Seimas releases judges from their duties is the prerogative of the President of the Republic.

Item 11 of Article 84 of the Constitution is related to Item 10 of Article 67 of the Constitution, under which the Seimas appoints, inter alia, the justices and President of the Supreme Court, as well as to Paragraph 2 of Article 112 of the Constitution, under which the justices of the Supreme Court, as well as its President chosen from among them, are appointed and released by the Seimas upon submission by the President of the Republic.

When interpreting these provisions of the Constitution, the Constitutional Court has noted that the Constitution establishes such a procedure of the appointment and release of the judges and presidents of courts of general jurisdiction of various levels where such judges and presidents of courts are appointed and released by the institutions of other branches of state power – executive power and legislative power; thus, they are appointed and released, respectively, by the President of the Republic and the Seimas, i.e. the institutions that are formed on a political basis; in order to appoint or release a justice or the President of the Supreme Court, the President of the Republic must propose that the Seimas appoints or releases such a person, while the final decision on the appointment of the said person as a justice or the President of the Supreme Court or his/her release from duties is adopted by the Seimas (ruling of 9 May 2006).

It should be noted from the aspect relevant to this constitutional justice case that, under the Constitution, inter alia, Paragraphs 2 and 3 of Article 5 thereof, and the constitutional principles of responsible governance and a state under the rule of law, the President of the Republic and the Seimas must properly implement the powers conferred on them by the Constitution and laws when appointing the justices of the Supreme Court, inter alia, the President of this court, and releasing them from duties; in exercising those powers, the President of the Republic and the Seimas must adopt lawful and reasonable legal acts. It should be noted that, this is one of the essential guarantees of the independence of judges, which is consolidated in the Constitution.

It should also be noted from the aspect relevant to this constitutional justice case that the said duties of the Seimas to properly implement the powers conferred on it by the Constitution and laws in appointing to and releasing from duties justices of the Supreme Court, inter alia, in adopting lawful and reasonable legal acts, do not deny the fact that Item 11 of Article 84 of the Constitution consolidates the prerogative of the President of the Republic, inter alia, to propose candidates for the posts of the justices of the Supreme Court for consideration by the Seimas, to propose the candidate for the post of the President of the Supreme Court to be appointed by the Seimas, and to submit that the Seimas releases judges from their duties in the cases provided for by law. Under the Constitution, the implementation of the constitutional powers and statutory powers of the Seimas when adopting the legal acts of the Seimas may be initiated only by submitting a draft of a relevant legal act to the Seimas, which it must begin considering; the will of the Seimas regarding the adoption of decisions may not be expressed otherwise than by vote of members of the Seimas at a sitting of the Seimas and by the adoption of a particular legal act; thus, according to the Constitution, the fact that, when proposing candidates for the posts of the justices of the Supreme Court to the Seimas, also when proposing a candidate for the post of the President of the Supreme Court and, in cases specified by law, submitting to the Seimas judges to be dismissed, the President of the Republic simultaneously submits to the Seimas respective draft legal acts does not deny the duty of the Seimas, after due consideration of the said draft legal acts, to adopt relevant lawful and reasonable legal acts.

19.3.2. The powers of the President of the Republic, which are consolidated in Item 11 of Article 84 of the Constitution, as well as the powers of the Seimas, which are enshrined in Paragraph 2 of Article 112 of the Constitution, should be interpreted in the context of Paragraph 4 of Article 111 of the Constitution, under which the formation and competence of courts are established by the Law on Courts of the Republic of Lithuania.

19.3.2.1. In interpreting Paragraph 4 of Article 111 of the Constitution, the Constitutional Court has held that the Constitution not only obliges the legislature to lay down, by means of a law, the establishment and competence of all the courts of the Republic of Lithuania (thus, including the status, formation, exercise of powers (activity), and guarantees of courts of general jurisdiction, the status of judges of these courts, etc.), which are specified in Paragraph 1 of Article 111 of the Constitution, but also expressis verbis consolidates the title of this law – the Law on Courts (inter alia, the rulings of 28 March 2006 and 22 October 2007, as well as decision of 16 May 2016).

The Constitutional Court has noted that the concept of the professional career of judges also includes such cases where a judge is appointed as the president of a certain court, as the chairperson of a division of a certain court, etc. (ruling of 09 May 2006). Thus, the Law on Courts may establish other positions that may be held by justices such as the deputy president of a court, or the chairperson of a particular division of a court (the decision of 16 May 2016).

Thus, it should be noted from the aspect relevant to this constitutional justice case that, under Item 11 of Article 84 of the Constitution, interpreted in conjunction with Paragraph 4 of Article 111 thereof, the President of the Republic has the power to submit to the Seimas a candidate not only for the post the President of the Supreme Court, but also candidates for the posts of the chairpersons of that court’s divisions established by the Law on Courts; the President of the Republic also has the power to propose that the Seimas releases from their duties the chairpersons of that court’s divisions established by the Law on Courts on the grounds laid down in the Constitution and in the provisions of the Law on Courts that do not contradict it. In addition, according to Paragraph 2 of Article 112 of the Constitution read in conjunction with Paragraph 4 of Article 111 thereof, the Seimas has the power, on the proposal of the President of the Republic, to appoint not only the President of the Supreme Court from among the justices of the Supreme Court, but also the chairpersons of the divisions of that court established by the Law on Courts; also, the Seimas has the power, on the proposal of the President of the Republic, to release from their duties the chairpersons of the divisions of that court established by the Law on Courts on the grounds laid down in the Constitution and in the provisions of the Law on Courts that do not contradict it.

19.3.2.2. When interpreting Paragraph 4 of Article 111 of the Constitution, it should be noted that, as the Constitutional Court has held, the term of powers of justices and presidents of courts must be regulated by means of the Law on Courts (decision of 15 May 2009).

It should be emphasised that one of the guarantees of the independence of judges, which is consolidated in the Constitution, is the guarantee of the term of their powers (inter alia, the rulings of 6 December 1995, 12 July 2001, and 9 May 2006). Only an independent court, i.e. only such a court whose judges are guaranteed the inviolability of the term of their powers, may be regarded as a court that administers justice in the manner required by the Constitution; the guarantee of the inviolability of the term of powers of a judge is also important because of the fact that a judge, whatever political forces are in power, must remain independent and must not adapt to the possible change of political forces (ruling of 9 May 2006 and decision of 30 June 2010). The term of powers of a judge must not depend on any future free-discretion decisions adopted by such state power institutions that have appointed him/her as a judge (inter alia, the rulings of 9 May 2006 and 22 October 2007 and the decision of 30 June 2010).

It should be noted that, upon having established the term of powers (term of office) of the President of the Supreme Court (the chairperson of a division of this court), a duty arises for the Seimas to respect the term of powers (term of office) established by means of a law, as, under the Constitution, also each member of the Seimas, in performing the functions and exercising the powers established to him/her by the Constitution, is bound by the Constitution and laws; thus, neither the Seimas, nor the members of the Seimas can ignore not only the Constitution, but also the legal regulation (consolidated in the law) that determines the term of powers (term of office) of the President of the Supreme Court (or the chairperson of a division of this court (decision of 15 May 2009). This, inter alia, applies to the Seimas when deciding on the release of the Chairperson of the Civil Division of the Supreme Court of Lithuania from duties.

It should also be noted that the President of the Republic must also respect the legal regulation consolidated in the law which establishes the term of powers (term of office) of the President of the Supreme Court, when he/she, inter alia, implements the powers prescribed in the Constitution and the Law on Courts to submit for the Seimas to release the President of the Supreme Court from duties.

19.3.2.3. In this context, it should be noted that the grounds for releasing judges from duties are established in Article 115 of the Constitution. This article establishes that “The judges of the courts of the Republic of Lithuania shall be released from their duties according to the procedure established by law in the following cases:

(1) of their own will;

(2) upon the expiry of the term of powers, or upon reaching the pensionary age established by law;

(3) due to their state of health;

(4) upon election to another office, or upon transfer, with their consent, to another place of work;

(5) when their conduct discredits the name of judges;

(6) upon the entry into effect of court judgments convicting them.”

It should be mentioned that, under Article 116 of the Constitution, according to the procedure for impeachment proceedings, the President and justices of the Supreme Court, as well as the President and judges of the Court of Appeal, may be removed from office by the Seimas for a gross violation of the Constitution or a breach of the oath, or when they are found to have committed a crime.

The Constitutional Court has noted that the final list of grounds for releasing judges from their duties (i.e. the cessation of powers), which is consolidated in the Constitution, is final and that this list must not be expanded by means of laws or other legal acts (inter alia, the rulings of 9 May 2006 and 27 November 2006 and the decision of 15 May 2009). It should be emphasised that this is one of the guarantees of the term of powers of judges, consequently, also one of the guarantees of the independence of judges, which is consolidated in the Constitution.

A guarantee of judges’ independence (which is consolidated in the Constitution) is reflected in the phrase of Article 115 of the Constitution “The judges shall be released from their duties according to the procedure established by law”. In interpreting the said phrase, the Constitutional Court held that the procedure, laid down in the Law on Courts, for releasing judges from their duties must be observed by all entities that have the powers, under the Constitution and the Law on Courts, to decide on releasing judges from their duties or, in the manner prescribed by the Law on Courts, have the power to participate in deciding on issues of releasing judges from their duties (ruling of 27 November 2006).

19.3.2.4. It should also be noted from the aspect relevant to this constitutional justice case that the grounds for releasing judges from their duties (the cessation of powers) established in Articles 115 and 116 of the Constitution should be applied also when releasing judges from the duties of the president of a court (or the chairperson of a division of the court).

As the Constitutional Court has noted, if judges are appointed as the said presidents of courts, chairpersons of divisions of courts, or as ones that must fulfil certain other administrative duties for a certain time period established by law, after the said time period is over, they must be released from their duties; therefore, as well as when appointing them to that office, a particular individual law-applying act on their release from duties must be adopted (ruling of 9 May 2006). In this case, a judge is released from the duties of the president of a court, of the chairperson of a court’s division, or from any other administrative duties in a relevant court (upon the expiry of the term of office).

By adopting a relevant individual act of the application of law, judges may be released (without releasing them from the position of a judge) from the duties of the president of a court, of the chairperson of a court’s division, or from any other administrative duties in a relevant court, among others, on the grounds laid down in Item 4 of Article 115 of the Constitution (after having appointed them to another position either in the same or another court). By adopting a relevant individual act of the application of law, the powers of the presidents of courts, the chairpersons of divisions of courts, and other judges who fulfil administrative duties in courts terminate also in those cases when the judges who have held such office are released from duties (after their powers as judges cease) on any of the grounds established in Articles 115 and 116 of the Constitution.

It should be noted that, taking into account the specific nature of the positions of the presidents of courts, the chairpersons of divisions of courts or other administrative positions of courts, under the Constitution, the Law on Courts, while paying regard, inter alia, to the constitutional principle of the independence of judges and courts, may also lay down other grounds for dismissal from those duties, while retaining the office of the judge, relating to improper performance of the president of the court, the chairperson of a division of the court or other administrative duties, such as the performance of administrative functions.

19.3.2.5. The ground for releasing judges from their duties established in Item 4 of Article 115 of the Constitution is relevant for this constitutional justice case: “upon election to another office, or upon transfer, with their consent, to another place of work”.

As the Constitutional Court has held, the provision of Item 4 of Article 115 of the Constitution should not be interpreted only literally, by applying the sole linguistic (verbal) method of the interpretation of law; the wording of this item covers all cases in which a judge is appointed, elected or in any other way, or takes up another post (starts working in another job) with his/her consent, irrespective of the manner of entering a new position (starting work) provided for in laws and other legal acts (ruling of 2 June 2005).

In the context of the constitutional justice case at issue, it should be noted that the formula of Item 4 of Article 115 of the Constitution also covers cases where a judge is released from his/her duties after being appointed to another position in the same court (such as his/her release from the duties of the chairperson of a division of the court following his/her appointment as the president of the court) or after being appointed with his/her consent to another court.

It should also be noted that wording of Item 4 of Article 115 of the Constitution gives rise to the requirement that a judge is released from his/her duties only upon the occurrence of the legal fact – his/her election, including his/her appointment, to another position (inter alia, in the same court). In other words, according to Item 4 of Article 115 of the Constitution, the election (appointment) of a judge to another position or transfer, with his/her consent, to another job is a necessary condition for making a decision to release the judge from his/her duties; the President of the Republic, when proposing that the Seimas releases a judge from his/her duties on the grounds laid down in Item 4 of Article 115 of the Constitution, and the Seimas, when releasing, on the proposal of the President of the Republic, the judge from his/her duties on these grounds, must make sure that the judge is actually elected (appointed) to another position. A different interpretation of Item 4 of Article 115 of the Constitution would be incompatible with the independence of judges, which is consolidated in the Constitution, as it would create the preconditions for releasing a judge from his/her duties (inter alia, the president of a court, the chairperson of divisions of courts or other administrative positions) before the expiry of his/her term of office and in the absence of other grounds established in the Constitution or the Law on Courts.

19.3.3. Item 11 of Article 84 of the Constitution, which establishes the powers of the President of the Republic, inter alia, to propose candidates for the posts of the justices of the Supreme Court for consideration by the Seimas and, on the appointment of all the justices of the Supreme Court, to propose the candidate from among them for the post of the President of the Supreme Court to be appointed by the Seimas, as well as, in cases provided for by law, to submit that the Seimas releases judges from their duties, is linked with Paragraph 5 of Article 112 of the Constitution, wherein it is prescribed that a special institution of judges, as provided for by law, advises the President of the Republic on the appointment, promotion, and transfer of judges, or their release from duties.

19.3.3.1. In interpreting this provision of the Constitution, the Constitutional Court has noted that a special institution of judges, provided for in Paragraph 5 of Article 112 of the Constitution, which advises the President of the Republic on the appointment, promotion, transfer of judges, or their dismissal from duties, is an important element of the self-government of the judiciary as an independent branch of state power; the constitutional powers of the said institution of judges are related to the participation of the judiciary as the branch of state power formed on a professional basis and of certain members of the corps of judges, who implement judicial power and, in accordance with a procedure prescribed by law, are appointed or elected to the said special institution of judges, in adopting decisions on the career of judges (ruling of 9 May 2006 and decision of 10 March 2014).

While regulating the relations linked to the appointment, promotion, transfer of judges, or their release from duties, it is not allowed to deny the indicated special competence of the institution of judges, or its constitutional nature and purpose; in the area of the formation of the corps of judges, this special institution of judges is a counterbalance to the President of the Republic as a subject of executive power (inter alia, the rulings of 21 December 1999, 13 December 2004, and 9 May 2006). The fact that judiciary is fully fledged, autonomous, and independent, as well as the constitutional principle of the separation of powers, makes it impossible to interpret the constitutional purpose and functions of the said special institution of judges in such a way that its role as a counterbalance to the President of the Republic in the area of the formation of the corps of judges would be denied or ignored (ruling of 9 May 2006 and decision of 15 May 2009).

19.3.3.2. In the jurisprudence of the Constitutional Court, among other things, it has been held that the impossibility, which stems from the Constitution, to release a judge from his/her duties without the advice of a special institution of judges, which is specified in Paragraph 5 of Article 112 of the Constitution and is provided for by law, is a very important guarantee of the independence of judges and courts and is one of the means that helps judges of all courts with no exception to protect themselves from the interference of state power and governing institutions, members of the Seimas, as well as other officials, political parties, political and public organisations, and other persons, with the activities of judges or courts (ruling of 9 May 2006 and decision of 10 March 2014).

The Constitutional Court has held that, in cases where the President of the Republic applies to a special institution of judges, as provided for by law and specified in Paragraph 5 of Article 112 of the Constitution, so that it would advise him/her on the release of a judge from his/her duties, as there is one of the grounds (or several such grounds) provided for in Items 1 and 3–5 of Article 115 of the Constitution, the said special institution of judges must (accordingly) not only make sure that a judge requests to be released from duties, but also assess whether he/she is doing so of his/her own will and whether he/she is forced to do so (Item 1 of Article 115 of the Constitution), it must not only make sure that a judge has health problems, but also assess in accordance with a procedure established by law whether his/her state of health is such that he/she cannot perform the duties of a judge (Item 3 of Article 115 of the Constitution); the said special institution of judges must not only make sure that a judge has been elected to another office or transferred to another place of work, but also assess whether he/she has been elected to this office or transferred to another place of work with his/her consent (Item 4 of Article 115 of the Constitution), it must not only make sure that a judge has engaged in certain conduct (act), but also to assess whether his/her conduct (act) really discredited the name of judges (Item 5 of Article 115 of the Constitution); if (accordingly) a judge really of his/her own will requests to be released from his/her duties, his/her state of health is really such that he/she may not perform the duties of a judge, he/she has really been elected to another office or transferred to another place of work with his/her consent, or has really discredited the name of judges by his/her conduct, a special institution of judges, as provided for by law and specified in Paragraph 5 of Article 112 of the Constitution, must advise the President of the Republic to release a judge in question from duties; it should be emphasised that, in such cases, the said special institution of judges is not allowed not to advise the President of the Republic to release a judge from duties, and the President of the Republic, after he/she has received such advice, has the powers to release a judge from his/her duties (if a justice of the Supreme Court is released from duties, the President of the Republic has the powers to propose that the Seimas releases him/her from duties and, if a judge of the Court of Appeal is released from duties, the President of the Republic has the powers to request assent from the Seimas in order to release him/her from duties); this must be done without delay (ruling of 9 May 2006).

In view of this fact, from the aspect relevant to this constitutional justice case, it should be noted that, in the event where the President of the Republic applies to a special institution of judges, specified in Paragraph 5 of Article 112 of the Constitution, so that it would advise him/her on proposing that the Seimas releases the chairperson of a division of the Supreme Court from his/her duties on the basis provided for in Item 4 of Article 115 of the Constitution, the said special institution of judges must, inter alia, make sure that the legal fact specified in Item 4 of Article 115 of the Constitution has occurred, i.e. that the judge has been elected, inter alia, appointed to another position or transferred to another place of work; in the absence of such a legal fact, the special institution of judges provided for in Paragraph 5 of Article 112 of the Constitution should not advise the President of the Republic on proposing that the Seimas releases the chairperson of a division of the Supreme Court from his/her duties on the grounds provided for in Item 4 of Article 115 of the Constitution.

V

The assessment of the compliance of Article 1 of the decree of the President of the Republic

with the Constitution and the Law on Courts

20. It has been mentioned that, in this constitutional justice case, the Constitutional Court investigates whether Article 1 of the decree (No 1K-164) of the President of the Republic of 16 December 2019 is in conflict with the provision of Item 11 of Article 84 of the Constitution that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111 thereof, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, insofar as, according to the petitioner, by means of the said article, it was submitted for the Seimas to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of this court without having appointed her as the President of the Supreme Court.

21. According to the petitioner, the Seimas, when submitting, by means of Article 1 of the decree of the President of the Republic of 16 December 2019, for the Seimas to release the Chairperson of the Civil Division of the Supreme Court from her duties without having appointed her to another position:

the requirements prescribed in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, were not followed and the provision of Item 11 of Article 84 of the Constitution, under which the President of the Republic may submit that the Seimas releases judges from their duties only in cases provided for by law, Paragraph 4 of Article 111 of the Constitution, under which the procedure, laid down in the Law on Courts, for releasing judges from their duties must be observed by all entities that have the powers, under the Constitution and the Law on Courts, to decide on releasing judges from their duties, as well as Item 4 of Article 115 of the Constitution, under which a judge is released from duties only after his/her appointment to another post, were violated;

upon the creation of the preconditions for the Seimas to release the justice Sigita Rudėnaitė from the duties of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal basis established in the Constitution or the Law on Courts, the constitutional principle of the independence of judges and courts was violated;

one of the essential elements of the constitutional principle of a state under the rule of law – the imperative of legal certainty and legal clarity, meaning that the legal regulation established in legal acts must be clear, comprehensible, and coherent, and may not contain any ambiguities; the consistency and internal coherence of the legal system must be ensured;

the constitutional principle of responsible governance, which implies, among others, that all state institutions and officials must properly implement the powers conferred on them by the Constitution and laws, was disregarded.

22. While deciding on the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019 with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it should be noted that, under the legal regulation established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, the Chairperson of a division of the Supreme Court, as an official of this court who, in addition to the powers to administer justice, has additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts, is released from duties only after the legal fact has taken place – inter alia, upon his/her appointment to another post at the Supreme Court (the Chairperson of another division of the Supreme Court or President of the Supreme Court).

22.1. Interpreting Article 1 of the decree of the President of the Republic of 16 December 2019, it should be noted that:

it implemented the constitutional powers (consolidated in Item 11 of Article 84 and Paragraphs 2 and 5 of Article 112 of the Constitution and concretised in Paragraphs 1, 3 and 4 of Article 79 (wording of 19 April 2007), Item 3 of Paragraph 1 (wording of 3 July 2008), Paragraph 3 (wording of 19 April 2007), and Paragraph 7 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts) of the President of the Republic, taking into consideration the advice of a special institution of judges provided for by law – the Judicial Council – to propose the candidate from among the judges of the Supreme Court for the post of the President of the Supreme Court to be appointed by the Seimas, as well as to release from duties the Chairperson of the division of the Supreme Court only upon his/her appointment to another position;

it took into account the Judicial Council’s advice to the President of the Republic to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of that court, formulated according to the wording of the request presented in the decree (No 1K-162) of the President of the Republic of 16 December 2019 on the application to the Judicial Council;

it formulated the proposal that the Seimas adopts, by means of a single decision, two interrelated decisions – to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of that court, i.e. it was proposed that the Seimas takes both decisions together as a single decision.

As mentioned before, by its resolution of 21 April 2020, the Seimas took into account only part of the proposal formulated in Article 1 of the decree of the President of the Republic of 16 December 2019 that the Seimas adopts, by means of a single decision, two interrelated decisions (to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of this court), i.e. the Seimas adopted only one of the two decisions proposed for joint adoption – released the justice of the Supreme Court, Sigita Rudėnaitė, from the duties of the Chairperson of the Civil Division of that court, but did not appoint her as the President of that court.

22.2. Therefore, it should be noted that the fact that Article 1 of the Decree of the President of the Republic of 16 December 2019 proposed that the Seimas takes two interrelated decisions – releasing a justice of the Supreme Court from the duties of the Chairperson of the Civil Division of that court and appointing her as the President of the same court – created the preconditions for the Seimas to decide on the joint adoption of both decisions, inter alia, the release of the justice from the duties of Chairperson of the Civil Division of the Supreme Court, but without having appointed her as the President of that court. It should also be noted that in the absence of the proposal from the President of the Republic that, among other things, the said justice be released from the position of the Chairperson of the Civil Division of that court, the Seimas would not have had the opportunity to take such a decision before her appointment as the President of the Supreme Court.

Therefore, Article 1 of the decree of the President of the Republic of 16 December 2019 created the preconditions for the Seimas to release the justice Sigita Rudėnaitė from the duties of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal basis established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts – the legal fact that the justice has been appointed to another position, namely to the position of the President of the Supreme Court.

22.3. Thus, it should be held that Article 1 of the decree of the President of the Republic of 16 December 2019 is contrary to Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

23. In deciding on the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019 with the provision of Item 11 of Article 84 of the Constitution that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, as well as Paragraph 4 of Article 111 and Item 4 of Article 115 thereof, and the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, it should be noted that, as mentioned before:

the constitutional principle of a state under the rule of law implies various requirements for law-making subjects, inter alia, the fact that legal norms must be formulated precisely and may not contain any ambiguities;

the principle of the independence of judges and courts, which is enshrined in the Constitution, should also be interpreted in the context of the constitutional principle of a state under the rule of law; the independence of judges and courts judges and courts is not an objective in itself; it is one of the of the essential principles of a democratic state under the rule of law; the constitutional principle of the independence of judges and courts is also reflected in the provisions of Item 11 of Article 84, Paragraph 4 of Article 111, and Item 4 of Article 115 of the Constitution;

under the Constitution, inter alia, Paragraphs 2 and 3 of Article 5 thereof, and the constitutional principles of responsible governance and a state under the rule of law, the President of the Republic must properly implement the powers conferred on them by the Constitution and laws when appointing the justices of the Supreme Court, inter alia, the President of this court, and releasing them from duties; in exercising these powers, the President of the Republic must adopt lawful and reasonable legal acts; this is one of the essential guarantees of the independence of judges, which is consolidated in the Constitution;

under Item 11 of Article 84 of the Constitution, as interpreted in conjunction with Paragraph 4 of Article 111 thereof, the President of the Republic has the powers to submit to the Seimas, under the procedure established by the Law on Courts, a candidate not only for the post the President of the Supreme Court, but also candidates for the posts of the chairpersons of that court’s divisions established by the Law on Courts; the President of the Republic also has the power to propose that the Seimas releases from their duties the chairpersons of that court’s divisions established by the Law on Courts on the grounds laid down in the Constitution and in the provisions of the Law on Courts that do not contradict it;

the wording of Item 4 of Article 115 also covers cases where a judge is released from his/her duties after being appointed to another position in the same court (such as his/her release from the duties of the chairperson of a division of the court following his/her appointment as the president of the court) or after being appointed with his/her consent to another court; – the wording of Item 4 of Article 115 of the Constitution gives rise to the requirement that a judge is released from his/her duties only upon the occurrence of the legal fact – his/her election, inter alia, his/her appointment, to another position (inter alia, in the same court); the President of the Republic, when proposing that the a judge from his/her duties on the grounds laid down in Item 4 of Article 115 of the Constitution, must make sure that the judge is actually elected (appointed) to another position or is transferred, with his/her consent, to another job; a different interpretation of Item 4 of Article 115 of the Constitution would be incompatible with the independence of judges, which is consolidated in the Constitution, as it would create the preconditions for releasing a judge from his/her duties (inter alia, the president of a court, the chairperson of divisions of courts or other administrative positions) before the expiry of his/her term of office and in the absence of other grounds established in the Constitution or the Law on Courts.

23.1. As mentioned before, interpreting Article 1 of the decree of the President of the Republic of 16 December 2019, it should be noted that:

it implemented the constitutional powers (consolidated in Item 11 of Article 84 and Paragraphs 2 and 5 of Article 112 of the Constitution and concretised in Paragraphs 1, 3 and 4 of Article 79 (wording of 19 April 2007), Item 3 of Paragraph 1 (wording of 3 July 2008), Paragraph 3 (wording of 19 April 2007), and Paragraph 7 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts) of the President of the Republic, taking into consideration the advice of a special institution of judges provided for by law – the Judicial Council – to propose the candidate from among the judges of the Supreme Court for the post of the President of the Supreme Court to be appointed by the Seimas, as well as to release from duties the Chairperson of the division of the Supreme Court only upon his/her appointment to another position;

it formulated the proposal that the Seimas adopt, by means of a single decision, two interrelated decisions – to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of that court, i.e. it was proposed that the Seimas takes both decisions together as a single decision.

When assessing the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019 with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it should be noted that the fact that Article 1 of the Decree of the President of the Republic of 16 December 2019 proposed that the Seimas takes two interrelated decisions – releasing a justice of the Supreme Court from the duties of the Chairperson of the Civil Division of that court and appointing her as the President of the same court – created the preconditions for the Seimas to decide on the joint adoption of both decisions, inter alia, the release of the justice from the duties of Chairperson of the Civil Division of the Supreme Court, but without having appointed her as the President of that court; in the absence of the President of the Republic’s proposal that, inter alia, the said justice be released from the position of the Chairperson of the Civil Division of that court, the Seimas would not have had the opportunity to take such a decision before her appointment as the President of the Supreme Court.

When assessing the compliance of Article 1 of the decree of the President of the Republic of 16 December 2019 with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it should also be noted that Article 1 of the decree of the President of the Republic of 16 December 2019 created the preconditions for the Seimas to release the justice Sigita Rudėnaitė from the duties of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal fact that the justice has been appointed to another position, namely to the position of the President of the Supreme Court.

23.2. Thus, it should be held that Article 1 of the decree of the President of the Republic of 16 December 2019 disregarded the requirement, arising from Item 4 of Article 115 of the Constitution that the President of the Republic, when submitting to the Seimas a judge to be released from his/her duties, must make sure that the judge has actually been elected (appointed) to another position or is transferred, with his/her consent, to another job.

In addition, having held that Article 1 of the decree of the President of the Republic of 16 December 2019 is in conflict with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it should also be held that Article 1 of the decree of the President of the Republic of 16 December 2019 disregarded the requirement, arising from Item 11 of Article 84 of the Constitution read in conjunction with Paragraph 4 of Article 111 thereof, that the President of the Republic must propose that the Seimas, in accordance with the procedure established in the Law on Courts, releases from duties, on the grounds established in the Constitution and in the provisions of the Law on Courts that do not contradict it, the chairpersons of the divisions of the Supreme Court established by the Law on Courts.

Thus, regardless of the fact that, as mentioned before, the constitutional powers of the President of the Republic (consolidated in Item 11 of Article 84 and Paragraphs 2 and 5 of Article 112 of the Constitution) concretised in (Paragraphs 1, 3 and 4 of Article 79 (wording of 19 April 2007), Item 3 of Paragraph 1 (wording of 3 July 2008), Paragraph 3 (wording of 19 April 2007), and Paragraph 7 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90) of the Law on Courts, it should be held that the implementation of those powers did not comply with the requirements, arising from Paragraphs 2 and 3 of Article 5 of the Constitution and the constitutional principles of responsible governance and a state under the rule of law, that the President of the Republic must properly implement the powers conferred on him/her by the Constitution and laws in appointing to and releasing from duties justices of the Supreme Court and, in implementing these powers, adopt lawful and reasonable legal acts. At the same time, it should be held that Article 1 of the decree of the President of the Republic of 16 December 2019 also disregarded the guarantees of the independence of judges that are enshrined in the Constitution.

23.3. Thus, it should be held that Article 1 of the decree of the President of the Republic of 16 December 2019 contradicts Paragraphs 2 and 3 of Article 5 of the Constitution, the provision of Item 11 of Article 84 thereof that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance.

24. Taking into account the foregoing arguments, the conclusion should be made that Article 1 of the decree of the President of the Republic of 16 December 2019 is in conflict with Paragraphs 2 and 3 of Article 5 of the Constitution, the provision of Item 11 of Article 84 thereof that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111 thereof, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

25. As mentioned before, when interpreting Article 1 of the decree of the President of the Republic of 16 December 2019, it was noted that the Judicial Council’s advice to the President of the Republic to release the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and to appoint her as the President of that court, formulated according to the wording of the request presented in the decree (No 1K-162) of the President of the Republic of 16 December 2019 on the application to the Judicial Council was taken into account.

It has also been mentioned that, in the event where the President of the Republic applies to a special institution of judges, specified in Paragraph 5 of Article 112 of the Constitution, so that it would advise him/her on proposing that the Seimas releases the chairperson of a division of the Supreme Court from his/her duties on the basis provided for in Item 4 of Article 115 of the Constitution, the said special institution of judges must, inter alia, make sure that the legal fact specified in Item 4 of Article 115 of the Constitution has occurred, i.e. that the judge has been elected, inter alia, appointed to another position or transferred to another place of work; in the absence of such a legal fact, the special institution of judges provided for in Paragraph 5 of Article 112 of the Constitution should not advise the President of the Republic on proposing that the Seimas releases the Chairperson of a division of the Supreme Court from his/her duties on the grounds provided for in Item 4 of Article 115 of the Constitution.

In view of the above, it should be noted that the flaw in the submission to the Seimas to adopt, by means of a single decision, two interrelated decisions – to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of that court, formulated in Article 1 of the decree of the President of the Republic of 16 December 2019, was due, inter alia, to the fact that the Judicial Council, by giving advice to the President of the Republic in accordance with the wording of the request submitted by the President of the Republic, had failed to fulfil its constitutional obligation to make sure that the legal fact referred to in Item 4 of Article 115 of the Constitution had occurred, namely that the Chairperson of the Civil Division of the Supreme Court had been appointed as the President of that court.

VI

The assessment of the compliance of the resolution of the Seimas of 21 April 2020 with the Constitution and the Law on Courts

26. It has been mentioned that, in this constitutional justice case, the Constitutional Court investigates whether the resolution of the Seimas of 21 April 2020 is in conflict with Paragraph 4 of Article 111 and Paragraphs 2 and 5 of Article 112, and Item 4 of Article 115 of the Constitution, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

27. On the opinion of the Seimas, the petitioner, the resolution (No XIII-2848) of the Seimas of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court, whereby the justice of the Supreme Court, Sigita Rudėnaitė, was released from the position of the Chairperson of the Civil Division of that court before the expiry of her term of office in this position and in the absence of any other grounds for the release from the duties of the chairperson of a division of the Supreme Court provided for in the Constitution or the Law on Courts, as well as established in Item 4 of Paragraph 1 of Article 90 of the Law on Courts, which was invoked when passing this decree:

disregarded the term of powers (term of office) of the chairperson of a division of the Supreme Court established in Paragraph 4 (wording of 14 January 2020) of Article 79 of the Law on Courts and, at the same time, violated the constitutional principle of the independence of judges and courts, did not ensure the protection of legitimate expectations, legal certainty and legal security, which are inseparable elements the principle of a state under the rule of law implying the duty of the state to ensure the certainty and stability of any legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil any obligations assumed to a person; thus, also the constitutional principle of a state under the rule of law has been violated;

disregarded the grounds for the release from the duties of the chairperson of a division of the Supreme Court established in Paragraph 1 of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts and, at the same time, violated Paragraph 4 of Article 111 of the Constitution, obliging all entities having the powers to decide on releasing judges from their duties to observe the procedure laid down in the Law on Courts for releasing judges from their duties, Item 4 of Article 115 of the Constitution, under which a judge is released from duties after his/her appointment to another post, as well as the constitutional principle of the independence of judges and courts;

having disregarded the aim of the President of the Republic and the Judicial Council advising him/her, in accordance with Paragraph 5 of Article 112 of the Constitution, on all issues relating to the appointment of judges, their professional career and dismissal from office, that the Chairperson of the Civil Division of the Supreme Court would be released from those duties only upon appointing her as the President of the Supreme Court, violated Paragraph 3 (wording of 19 April 2007) of Article 81 of the Law o Courts, under which the Seimas releases the Chairperson of a division of the Supreme Court upon the submission of the President of the Republic, as well as violated the constitutional principles of the separation of powers and the independence of judges and courts;

the constitutional principle of responsible governance, which implies, among others, that all state institutions and officials must properly implement the powers conferred on them by the Constitution and laws, was disregarded.

According to the group of members of the Seimas, the petitioner, the Seimas adopted a different resolution than it was proposed by the President of the Republic and the most important self-government judicial institution – the Judicial Council: when dismissing the Chairperson of the Civil Division of the Supreme Court without transferring her to another office, the Seimas had not received advice from the Judicial Council as the most important entity representing the judiciary regarding such a decision.

In the opinion of the Vilnius Regional Court, the petitioner, Sigita Rudėnaitė was released from the duties of the chairperson of a division of the Supreme Court in the absence of any other grounds for the release from the duties provided for in the Constitution; moreover, in the absence of the submission of the President of the Republic or advice from the Judicial Council; and the voting procedure itself, after dividing the issues on which it was voted, possibly implies that voting results do not reflect the real will of the members of the Seimas.

28. When deciding on the compliance of the resolution of the Seimas of 21 April 2020 with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it should be noted that, as mentioned before:

under the legal regulation established in Paragraph 4 (wording of 14 January 2020) of Article 79 of the Law on Courts, the term of powers (term of office) of the chairperson of a division of the Supreme Court is five years;

under the legal regulation established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, the Chairperson of a division of the Supreme Court, as an official of this court who, in addition to the powers to administer justice, has additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts, is released from duties only after the legal fact has taken place – inter alia, upon his/her appointment to another post at the Supreme Court (the Chairperson of another division of the Supreme Court or President of the Supreme Court);

Paragraph 3 (wording of 19 April 2007) and Paragraph 7 (wording of 3 July 2008) of Article 81 of the Law on Courts establishes the procedure for releasing the chairperson of a division of the Supreme Court from his/her duties: the chairperson of a Division of the Supreme Court is released by the Seimas upon submission by the President of the Republic (Paragraph 3 (wording of 19 April 2007) of Article 81), inter alia, on the ground established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of this law; the President of the Republic is advised on the release of the chairperson of a division of the Supreme Court from duties, inter alia, on the ground established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of this law, by the Judicial Council (except the cases when the justice is appointed as a justice of the Constitutional Court or a member of the Government) (Paragraph 7 (wording of 3 July 2008) of Article 81).

It has been mentioned that Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts establishes the grounds for releasing the chairperson of a division of the Supreme Court from his/her duties: the President of the Supreme Court is released from duties, inter alia, under Item 1 of Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts – upon expiry of the term in the appointed office, which, as mentioned before, is five years (Paragraph 4 (wording of 14 January 2020) of Article 79), as well as under Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 – in all other cases of removal of a judge from office as specified in Paragraph 1 of Article 90 of this Law.

28.1. As mentioned before, it is obvious from the travaux préparatoires of the resolution of the Seimas of 21 April 2020 that, by means of that resolution (Article 1), the Seimas implemented only that part of its powers specified in the preamble to the resolution of the Seimas of 21 April 2020 that was related to the release of the Chairperson of the Civil Division of the Supreme Court from her duties (Paragraph 2 of Article 112 of the Constitution), i.e. it did not implement the powers, enshrined in Item 10 of Article 67 and Paragraph 2 of Article 112 of the Constitution, to appoint the President of the Supreme Court on the proposal of the President of the Republic; therefore, by its resolution of 21 April 2020, the Seimas took into account only part of the proposal formulated in Article 1 of the decree of the President of the Republic of 16 December 2019 that the Seimas adopt, by means of a single decision, two interrelated decisions (to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of this court), i.e. the Seimas adopted only one of the two decisions proposed for joint adoption – released the justice of the Supreme Court, Sigita Rudėnaitė, from the duties of the Chairperson of the Civil Division of that court, but did not appoint her as the President of that court. It should be noted that the resolution of the Seimas of 21 April 2020 distorted the will of the President of the Republic, expressed in the proposal to the Seimas formulated in Article 1 of the decree of the President of the Republic of 16 December 2019.

It has also been mentioned that, by the impugned resolution of the Seimas of 21 April 2020, Sigita Rudėnaitė was released from her duties of the Chairperson of the Civil Division of the Supreme Court before the expiry of the term of office in this position.

28.1. Thus, by means of the resolution of the Seimas of 21 April 2020, the justice Sigita Rudėnaitė was released from the duties of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal basis established in Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Law on Courts – the legal fact that the justice has been appointed to another position, namely to the position of the President of the Supreme Court, as well as regardless of the term of powers (term of office) established in Paragraph 4 (wording of 14 January 2020) of Article 79 of the Law on Courts of the chairperson of a division of the Supreme Court, thus, in the absence of the grounds laid down in Item 1 of Paragraph 1 (wording of 3 July 2008) of Article 81 of the Law on Courts or any other grounds for the release from the duties of the chairperson of a division of the Supreme Court. Consequently, the procedure laid down in Paragraph 3 (wording of 19 April 2007) of Article 81 of the Law on Courts for releasing the chairperson of a division of the Supreme Court from his/her duties, which can only be applied in order to release the chairperson of a division of the Supreme Court from his/her duties on the grounds established in Paragraph 1 (wording of 3 July 2008) of Article 81 of that law, was also disregarded.

28.3. It should be held that the resolution of the Seimas of 21 April 2020 is in conflict with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

29. In deciding on the compliance of the resolution of the Seimas of 21 April 2020 with Paragraph 4 of Article 111, Paragraph 2 of Article 112, and Item 4 of Article 115 of the Constitution, and with the constitutional principles of the independence of judges and courts, separation of powers, a state under the rule of law, and responsible governance, it should be noted that, as mentioned before:

the constitutional principle of a state under the rule of law is an especially broad constitutional principle and comprises a wide range of interrelated imperatives; the constitutional principle of a state under the rule of law is related, inter alia, to other constitutional principles such as the separation of powers and responsible governance;

the constitutional principle of the separation of powers means that legislative power, executive power, and judicial power must be separated and sufficiently independent; there must be a balance among them; the judiciary, being independent, may not be dependent on the other branches of power also because of the fact that it is the only branch of power formed on a professional, but not a political basis; the judiciary may implement its function, which is the administration of justice; only while being autonomous and independent of the other branches of power; the procedure for the appointment and release of judges must not violate the independence of the judiciary and the balance among state powers, which is established in Article 5 of the Constitution;

the constitutional principle of the independence of judges and courts, which is enshrined in the Constitution, should also be interpreted in the context of the constitutional principle of a state under the rule of law; the independence of judges and courts is not an objective in itself; it is one of the essential principles of a democratic state under the rule of law; the constitutional principle of the independence of judges and courts is also reflected in the provisions of Paragraph 4 of Article 111, Paragraphs 2 and 5 of Article 112, and Item 4 of Article 115 of the Constitution;

under the Constitution, inter alia, Paragraphs 2 and 3 of Article 5 thereof, and the constitutional principles of responsible governance and a state under the rule of law, the Seimas must properly implement the powers conferred on them by the Constitution and laws when appointing the justices of the Supreme Court, inter alia, the President of this court, and releasing them from duties; in exercising these powers, the Seimas must adopt lawful and reasonable legal acts; this is one of the essential guarantees of the independence of judges, which is consolidated in the Constitution; according to the Constitution, the fact that the President of the Republic, when proposing candidates for the posts of the justices of the Supreme Court to the Seimas, also when proposing a candidate for the post of the President of the Supreme Court and, in cases specified by law, submitting to the Seimas justices to be dismissed, simultaneously submits to the Seimas respective draft legal acts does not deny the duty of the Seimas, after due consideration of the said draft legal acts, to adopt relevant lawful and reasonable legal acts;

according to Paragraph 2 of Article 112 of the Constitution read in conjunction with Paragraph 4 of Article 111 thereof, the Seimas has the power, on the proposal of the President of the Republic, to appoint not only the President of the Supreme Court from among the justices of the Supreme Court, but also the chairpersons of that the divisions of that court established by the Law on Courts; also, the Seimas has the power, on the proposal of the President of the Republic, to release from their duties the chairpersons of the divisions of that court established by the Law on Courts on the grounds laid down in the Constitution and in the provisions of the Law on Courts that do not contradict it;

one of the guarantees of the independence of judges, which is consolidated in the Constitution, is the guarantee of the term of their powers; the term of powers of a judge must not depend on any future free-discretion decisions adopted by such state power institutions that have appointed him/her as a judge; upon having established the term of powers (term of office) of the President of the Supreme Court (the chairperson of a division of this court), a duty arises for the Seimas to respect the term of powers (term of office) established by means of a law, as, under the Constitution, also each member of the Seimas, in performing the functions and exercising the powers established to him/her by the Constitution, is bound by the Constitution and laws; thus, neither the Seimas, nor the members of the Seimas can ignore not only the Constitution, but also the legal regulation (consolidated in the law) that determines the term of powers (term of office) of the President of the Supreme Court (or the chairperson of a division of this court); this, inter alia, applies to the Seimas when deciding on the release of the chairperson of the Civil Division of the Supreme Court of Lithuania from duties;

the wording of Item 4 of Article 115 also covers cases where a judge is released from his/her duties after being appointed to another position in the same court (such as his/her release from the duties of the chairperson of a division of the court following his/her appointment as the president of the court) or after being appointed with his/her consent to another court; the wording of Item 4 of Article 115 of the Constitution gives rise to the requirement that a judge is released from his/her duties only upon the occurrence of the legal fact – his/her election, inter alia, his/her appointment, to another position (inter alia, in the same court); when releasing a judge from his/her duties on the grounds laid down in Item 4 of Article 115 of the Constitution, the Seimas must make sure that the judge is actually elected (appointed) to another position or is transferred, with his/her consent, to another job; a different interpretation of Item 4 of Article 115 of the Constitution would be incompatible with the independence of judges, which is consolidated in the Constitution, as it would create the preconditions for releasing a judge from his/her duties (inter alia, the president of a court, the chairperson of divisions of courts or other administrative positions) before the expiry of his/her term of office and in the absence of other grounds established in the Constitution or the Law on Courts.

29.1. As it has been mentioned in interpreting the resolution of the Seimas of 21 April 2020:

by this resolution (Article 1), the Seimas implemented only that part of its powers specified in the preamble to the resolution of the Seimas of 21 April 2020 that was related to the release of the Chairperson of a division of the Supreme Court from her duties (Paragraph 2 of Article 112 of the Constitution), i.e. it did not implement the powers, enshrined in Item 10 of Article 67 and Paragraph 2 of Article 112 of the Constitution, to appoint the President of the Supreme Court on the proposal of the President of the Republic;

by its resolution of 21 April 2020, the Seimas took into account only part of the proposal formulated in Article 1 of the decree of the President of the Republic of 16 December 2019 that the Seimas adopt, by means of a single decision, two interrelated decisions (to release the justice of the Supreme Court, Sigita Rudėnaitė, from the position of the Chairperson of the Civil Division of that court and to appoint the justice of the Supreme Court, Sigita Rudėnaitė, as the President of this court), i.e. the Seimas adopted only one of the two decisions proposed for joint adoption – released the justice of the Supreme Court, Sigita Rudėnaitė, from the duties of the Chairperson of the Civil Division of that court, but did not appoint her as the President of that court; the resolution of the Seimas of 21 April 2020 thus distorted the will of the President of the Republic, expressed in the proposal to the Seimas formulated in Article 1 of the decree of the President of the Republic of 16 December 2019;

by the resolution of the Seimas of 21 April 2020, Sigita Rudėnaitė was released from her duties of the Chairperson of the Civil Division of the Supreme Court before the expiry of the term of office in this position.

When assessing the compliance of the resolution of the Seimas of 21 April 2020 with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts, it was noted that, by its resolution of 21 April 2020, the Seimas had released Sigita Rudėnaitė from the position of the Chairperson of the Civil Division of the Supreme Court in the absence of the legal fact that the justice had been appointed to another position, namely to the position of the President of the Supreme Court; in addition, Sigita Rudėnaitė had been released from those duties by disregarding the term of powers (term of office) established in the Law on Courts, thus, in the absence of any grounds for the release from the duties of the chairperson of a division of the Supreme Court laid down in the Law on Courts, by, at the same time, disregarding the procedure for releasing the chairperson of a division of the Supreme Court from his/her duties established in the Law on Courts.

29.2. Thus, it should be held that the resolution of the Seimas 21 April 2020 disregarded the requirement, arising from Item 4 of Article 115 of the Constitution that the Seimas, when releasing a judge from his/her duties, must make sure that the judge has actually been elected (appointed) to another position or is transferred, with his/her consent, to another job. It should be noted that such a constitutional duty of the Seimas cannot be denied by the fact that, as stated in this ruling of the Constitutional Court, Article 1 of the decree of the President of the Republic of 16 December 2019 also disregarded the same requirement arising from Item 4 of Article 115 of the Constitution. It should be stressed that, notwithstanding a possible imperfection of the proposal by the President of the Republic to the Seimas, the final decision on the appointment of a justice of the Supreme Court or release of him/her from his/her duties is taken by the Seimas.

In addition, having held that, by means of the resolution of the Seimas 21 April 2020, Sigita Rudėnaitė was released from the position of the Chairperson of the Civil Division of the Supreme Court in the absence of any grounds for the release from the duties of the chairperson of a division of the Supreme Court laid down in the Law on Courts and regardless of the term of powers (term of office) of the chairperson of a division of the Supreme Court established in Paragraph 4 (wording of 14 January 2020) of Article 79 of the Law on Courts, it should also be held that the resolution of the Seimas disregarded the requirement, arising from Paragraph 2 of Article 112 of the Constitution, as interpreted in conjunction with Paragraph 4 of Article 111 thereof, that the Seimas must release from their duties the chairpersons of the divisions of Supreme Court established by the Law on Courts on the grounds laid down in the Constitution and in the provisions of the Law on Courts that do not contradict it, and the guarantee (implied by the constitutional principle of the independence of judges and courts) of the inviolability of the term of powers of judges. At the same time, it should also be held that the resolution of the Seimas of 21 April 2020 disregarded the requirement, arising from the constitutional principle of the separation of powers, not to violate the independence of the judiciary and the balance of state powers.

Consequently, despite the fact that, as mentioned before, by means of the resolution of the Seimas of 21 April 2020, the constitutional powers of the Seimas, which are specified in the preamble to this resolution and which are linked with the release from the duties of the chairperson of a division of the Supreme Court, were implemented, it must be held that the implementation of those powers did not comply with the requirements, arising from Paragraphs 2 and 3 of Article 5 of the Constitution and the constitutional principles of responsible governance and a state under the rule of law, that the Seimas must properly implement the powers conferred on it by the Constitution and laws in appointing to and releasing from duties the justices of the Supreme Court and, in implementing these powers, adopt lawful and reasonable legal acts.

29.3. Thus, it should be held that the resolution of the Seimas of 21 April 2020 is contrary to Paragraphs 2 and 3 of Article 5, Paragraph 4 of Article 111, Paragraph 2 of Article 112, and Item 4 of Article 115 of the Constitution, as well as to the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance.

30. Having held this, the Constitutional Court will not further investigate whether the resolution of the Seimas of 21 April 2020 is in conflict with Paragraph 5 of Article 112 of the Constitution.

31. Taking into account the foregoing arguments, the conclusion should be made that the resolution of the Seimas of 21 April 2020 is in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs 4 of Article 111, Paragraph 2 of Article 112 and Item 4 of Article 115 of the Constitution, and with the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance, as well as with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 June 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Law on Courts.

VII

On the legal consequences of declaring the resolution of the Seimas of 21 April 2020

contrary to the Constitution

32. Paragraph 1 of Article 102 of the Constitution stipulates that the Constitutional Court decides whether the laws and other acts of the Seimas are in conflict with the Constitution and whether the acts of the President of the Republic and the Government are in conflict with the Constitution and laws. The Constitutional Court ensures the supremacy of the Constitution in the legal system and administers constitutional justice.

As the Constitutional Court has held on more than one occasion, it carries out constitutional judicial control; the Constitutional Court is the institution of constitutional justice; while deciding, within its competence, on the compliance of lower-ranking legal acts (parts thereof) with higher-ranking legal acts, inter alia (and, first of all), with the Constitution, and exercising its other constitutional powers, the Constitutional Court – an individual and independent court – administers constitutional justice and guarantees constitutional legality and the supremacy of the Constitution in the legal system.

In this context, it should be noted that the concept of constitutional justice, which stems from the Constitution, implies not a perfunctory and nominal constitutional justice, but such final acts of the Constitutional Court that are not unjust according to their content; otherwise, without creating the possibility for the Constitutional Court to adopt, in accordance with the powers conferred upon it, such a final act that would meet the criteria of justice, the supremacy of the Constitution in the legal system would not be guaranteed and the administration of constitutional justice and the ensuring of constitutional legality would be prevented; the powers of the Constitutional Court to administer constitutional justice and to ensure constitutional legality are inseparable from the imperatives of the constitutional principle of a state under the rule of law, inter alia, from the requirements of the protection of legitimate expectations, legal security, justice, and reasonableness (rulings of 19 June 2018, 16 April 2019, and 28 August 2020).

33. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or another act (or part thereof) of the Seimas, an act of the President of the Republic, or an act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. As the Constitutional Court has held on more than one occasion, any legal act (part thereof) of the Seimas that is declared by a ruling of the Constitutional Court to be in conflict with the Constitution must be removed from the legal system of Lithuania and may no longer be applied.

By this ruling of the Constitutional Court, the resolution of the Seimas of 21 April 2020 was declared unconstitutional and contrary to the Law on Courts. It should be noted that the resolution of the Seimas of 21 April 2020, by which the Chairperson of the Civil Division of the Supreme Court, Sigita Rudėnaitė, was released from those duties, is an individual act of application of law.

Thus, after the official publication of this ruling of the Constitutional Court (after its entry into force), the resolution of the Seimas of 21 April 2020 will be removed from the Lithuanian legal system. In view of this, the Chairperson of the Civil Division of the Supreme Court, Sigita Rudėnaitė, cannot be considered released from those duties. Consequently, as from the day of the official publication (entry into force) of this ruling of the Constitutional Court, Sigita Rudėnaitė, a justice of the Supreme Court, will hold the position of the Chairperson of the Civil Division of the Supreme Court.

33.1. When interpreting Paragraph 1 of Article 107 of the Constitution, the Constitutional Court has disclosed the content of the presumption of the constitutionality of legal acts and of the constitutionality of the consequences as a result of the application of legal acts: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a law (part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (part thereof) is in conflict with the Constitution, means that, as long as the Constitutional Court has not adopted a decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal consequences that have appeared on the basis of the act in question are legitimate (inter alia, the ruling of 30 December 2003, the decision of 19 December 2012, and the ruling of 27 June 2016).

33.1.1. In the context of the constitutional justice case at issue, it should be noted that, in its decision (no KT98-S93/2020) of 28 May 2020, the Constitutional Court held that, after, by means of its decision of 13 May 2020, the Constitutional Court accepted the petition of the Seimas, the petitioner, in which it was requested to investigate whether the resolution of the Seimas of 21 April 2020 was in conflict with the Constitution and the Law on Courts, the suspension of the validity of this resolution did not imply the annulment or amendment of the legal consequences that had occurred – the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court – until the Constitutional Court has considered the constitutional justice case subsequent to the petition of the Seimas and the Constitutional Court’s ruling on the compliance the the resolution of the Seimas of 21 April 2020 with the Constitution and/or the Law on Courts has not come into force.

In the above-mentioned decision of 28 May 2020, the Constitutional Court also noted that the suspension of the validity of a legal act (provided for in Paragraph 5 (wording of 21 March 2019) of Article 106 of the Constitution) in those cases when, by means of a resolution, the President of the Republic or the Seimas applies to the Constitutional Court concerning the compliance of this legal act with the Constitution, does not deny in itself the presumption of the constitutionality of the impugned legal acts and the legitimacy of the consequences of their application, which stems from Paragraph 1 of Article 107 of the Constitution. The Constitutional Court has held on more than one occasion that the fact that the Constitutional Court accepts the petition of the Seimas, the petitioner, and the suspension of the validity of a relevant legal act after the accepting of the petition neither annul nor change the legal effects that have occurred (inter alia, the decisions of 8 January 2008, 8 October 2008, and 13 November 2013).

33.1.2. The Constitutional Court has held that the general rule, consolidated in Paragraph 1 of Article 107 of the Constitution, that the legal force of decisions of the Constitutional Court is prospective is not absolute (inter alia, the ruling of 30 December 2003, the decision of 19 December 2012, and the ruling of 27 June 2016). As it was noted in the decision of the Constitutional Court of 19 December 2012, the provisions of Paragraph 1 of Article 102 and Paragraph 2 of Article 107 of the Constitution, interpreted in the context of the fundamental constitutional values consolidated in Articles 1 and 18 of the Constitution and in the context of the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law, inter alia, give rise to the powers of the Constitutional Court as an institution administering constitutional justice and guaranteeing constitutional legality and the supremacy of the Constitution in the legal system, upon establishing in a constitutional justice case that an impugned legal act (part thereof) is not only in conflict with the Constitution, but also denies in essence the fundamental constitutional values – the independence of the State of Lithuania, democracy, and the republic, or the innate nature of human rights and freedoms – also to declare the consequences of the application of such a legal act (part thereof) as anticonstitutional.

The Constitutional Court has also held that the such laws or other legal acts that conflict with the Constitution violate the principle of the supremacy of the Constitution and other constitutional values; the aforesaid laws and legal acts might also encroach upon the elements of democracy consolidated in the Constitution; however, in itself, the statement that a law or another legal act conflicts with the Constitution does not mean that the provision of Article 1 of the Constitution that the State of Lithuania is democratic is violated; the Constitutional Court must assess in every individual case whether a legal regulation declared contrary to the Constitution denies the provision of Article 1 of the Constitution, under which the State of Lithuania is democratic (ruling of 19 September 2002).

33.2. As mentioned before, by this ruling of the Constitutional Court, the resolution of the Seimas of 21 April 2020, by which the Chairperson of the Civil Division of the Supreme Court, Sigita Rudėnaitė, was released from those duties, was declared to be in conflict with the Constitution and the Law on Courts. It should be noted that, by means of its resolution of 21 April 2020, the Seimas released the justice Sigita Rudėnaitė not from the duties of the justice of the Supreme Court, but from the duties of the Chairperson of the Civil Division of that court, which, according to the legal regulation laid down in the Law on Courts, are (administrative) judicial duties of a court official and provide additional procedural rights and duties established in laws, as well as administrative powers laid down in laws and other legal acts. In this context, it should be mentioned that, under Paragraph 2 of Article 105 “Substituting for and Acting as the Heads of the Court” (wording of 22 December 2010) of the Law on Courts, if the chairperson of a division of the Supreme Court is unavailable, a justice of this division with the longest period of judicial service in this court acts in his/her place. It should also be mentioned that, under Paragraph 1 of this article, if the President of the Supreme Court is unavailable, the chairperson of a division with a longer period of judicial service acts in his/her place, and when there are no chairperson of divisions of the Court, the justice with the longest period of judicial service in this court acts in the place of the President of this Court.

33.3. In view of the above, there is no ground for stating that the resolution of the Seimas of 21 April 2020, whereby the justice Sigita Rudėnaitė was released from the duties of the Chairperson of the Civil Division of the Supreme Court, disrupted the administration of justice and, in particular, the fulfilment of the functions of the Supreme Court. Thus, having declared the resolution of the Seimas of 21 April 2020 to be in conflict with the Constitution and the Law on Courts in this constitutional justice case, there is no reason to deny the lawfulness of the legal effects arising from the presumption of constitutionality. The resolution of the Seimas of 21 April 2020 does not deny in essence the said fundamental constitutional values, inter alia, democracy and the inherent nature of human rights and freedoms; thus, there is no legal basis to declare anti-constitutional all the consequences of the application of the resolution of the Seimas of 21 April 2020. Consequently, as such, the fact that, by this ruling of the Constitutional Court, the resolution of the Seimas of 21 April 2020 was declared to be in conflict with the Constitution and the Law on Courts, does not constitute a basis to contest the decisions made by the justices of the Supreme Court who temporarily served as the President of the Supreme Court or the Chairperson of the Civil Division of the Supreme Court while Sigita Rudėnaitė was not the Chairperson of the Civil Division of the Supreme Court on the grounds of the resolution of the Seimas of 21 April 2020.

34. It should be noted that Paragraph 2 of Article 30 of the Constitution prescribes: “Compensation for material and moral damage inflicted upon a person shall be established by law.”

As held by the Constitutional Court, the right of a person to claim compensation for damage inflicted by unlawful actions arises from Paragraph 2 of Article 30 of the Constitution (rulings of 19 May 2017 and 8 March 2018); one of the main ways of protecting violated rights and freedoms is compensation for damage inflicted as a result of unlawful actions; – on the basis of the constitutional provisions of Article 5 of the Constitution that the scope of power is limited by the Constitution and that state institutions serve the people, also on the basis of the constitutional principle of the protection of human rights and freedoms, as well as other principles found in a state under the rule of law, the conclusion should be drawn that, in the course of implementing Paragraph 2 of Article 30 of the Constitution, a law must provide for the duty of the state to compensate material and moral damage inflicted as a result of unlawful actions committed by its authorities and officials; only such interpretation of Paragraph 2 of Article 30 of the Constitution makes it possible to ensure the effective protection of violated constitutional rights and freedoms of individuals (rulings of 30 June 2000 and 8 March 2018).

In the context of the constitutional justice case at issue, it should be noted that such a constitutional duty of the state to compensate material and moral damage inflicted as a result of unlawful actions committed by its authorities and officials must be interpreted as including its obligation to compensate material and/or moral damage caused to the person in question when she was unlawfully released from the duties of the Chairperson of the Civil Division of the Supreme Court.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Article 1 of the decree (No 1K-164) of the President of the Republic of Lithuania of 16 December 2019 on the submission to the Seimas of the Republic of Lithuania that it releases the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court and that it appoints her as the President of the Supreme Court of Lithuania (Register of Legal Acts, 16-12-2019, No 20242) is in conflict with Paragraphs 2 and 3 of Article 5 of the Constitution of the Republic of Lithuania, the provision of Item 11 of Article 84 thereof that, in cases provided for by law, the President of the Republic submits that the Seimas releases judges from their duties, Paragraph 4 of Article 111 thereof, Item 4 of Article 115 thereof, the constitutional principles of the independence of judges and courts, a state under the rule of law, and responsible governance, as well as with Item 3 of Paragraph 1 (wording of 3 July 2008) of Article 81 and Item 4 of Paragraph 1 of Article 90 of the Republic of Lithuania’s Law on Courts (wording of 24 January 2002).

2. To recognise that the resolution (No XIII-2848) of the Seimas of the Republic of Lithuania of 21 April 2020 on the release of the justice of the Supreme Court of Lithuania, Sigita Rudėnaitė, from her duties of the Chairperson of the Civil Division of that court (Register of Legal Acts, 22-04-2020, No 8312, identification code 2020-08312) is in conflict with Paragraphs 2 and 3 of Article 5, Paragraph 4 of Article 111, Paragraph 2 of Article 112, and Item 4 of Article 115 of the Constitution of the Republic of Lithuania, the constitutional principles of the independence of judges and courts, the separation of powers, a state under the rule of law, and responsible governance, as well as with Paragraph 4 (wording of 14 January 2020) of Article 79, Paragraph 1 (wording of 3 July 2008) and Paragraph 3 (wording of 19 April 2007) of Article 81, and Item 4 of Paragraph 1 of Article 90 of the Republic of Lithuania’s Law on Courts (wording of 24 January 2002).

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:          Elvyra Baltutytė
                                                                              Gintaras Goda
                                                                              Vytautas Greičius
                                                                              Gediminas Mesonis
                                                                              Vytas Milius
                                                                              Janina Stripeikienė
                                                                              Dainius Žalimas