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On the decisions of the Seimas Ombudsman to refuse to consider complaints

Anonymised

Case no 18-A/2020

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

RULING
ON THE COMPLIANCE OF THE PROVISION OF PARAGRAPH 2 OF ARTICLE 18 OF THE REPUBLIC OF LITHUANIA’S LAW ON ADMINISTRATIVE PROCEEDINGS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

9 November 2021, no KT177-A-N14/2021
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, Giedrė Lastauskienė, Vytautas Mizaras, Algis Norkūnas, Daiva Petrylaitė, and Janina Stripeikienė

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 before the Constitutional Court on 4 November 2021, considered, under written procedure, constitutional justice case no 18-A/2020 subsequent to petition no 1A-205/2020 of the petitioner [data not made public] requesting an investigation into whether paragraph 2 of Article 18 of the Republic of Lithuania’s Law on Administrative Proceedings (wording of 2 June 2016), insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Ombudsman of the Seimas of the Republic of Lithuania to refuse to consider complaints, is in conflict with paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The circumstances of the petition and the arguments of the petitioner

1. By means of its order of 29 July 2020, the Vilnius Regional Administrative Court (Vilniaus apygardos administracinis teismas), having examined the petitioner’s complaint regarding the decision of a member of the Administrative Disputes Commission of Lithuania, refusing to investigate the complaint against the decision of the Seimas Ombudsman to refuse to consider a complaint, dismissed the administrative case as falling outside the competence of the administrative courts. By means of its final and unappealable order of 16 September 2020, the Supreme Administrative Court of Lithuania (Lietuvos vyriausiasis administracinis teismas) rejected the petitioner’s separate complaint and left the aforementioned order of the Vilnius Regional Administrative Court unchanged, stating, inter alia, that paragraph 2 of Article 18 of the Republic of Lithuania’s Law on Administrative Proceedings (wording of 2 June 2016) restricts expressis verbis the competence of the administrative courts to assess the lawfulness and reasonableness of decisions taken by the Seimas Ombudsman, including decisions refusing to consider complaints.

2. In this constitutional justice case, the petitioner substantiates his position on the compliance of paragraph 2 of Article 18 of the Law on Administrative Proceedings, to the extent pointed out by him, with paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law with the following arguments.

2.1. According to the petitioner, the impugned legal regulation precludes challenging in a court decisions taken by a state official – the Seimas Ombudsman – to refuse to consider complaints even if such decisions are unfounded; this limits the right of persons to apply to a court, which is consolidated in paragraph 1 of Article 30 of the Constitution.

2.2. In addition, according to the petitioner, when taking into account the constitutional right of citizens to criticise the work of state institutions or officials, to lodge complaints against their decisions, as well as to defend their rights in a court, the impugned legal regulation denies a person’s right to lodge complaints against decisions taken by the Seimas Ombudsman to refuse to consider complaints that seek a relevant investigation by the Seimas Ombudsman; thus, the impugned legal regulation violates the constitutional principle of a state under the rule of law.

2.3. In his letter of 3 November 2021, the petitioner submitted, among others, requests relating to the handling of this constitutional justice case, which were not granted by means of a decision of the Constitutional Court that was entered in the minutes.

II

The arguments of the representatives of the party concerned

3. In the course of the preparation of the case for the hearing before the Constitutional Court, written explanations were received from Seimas member Julius Sabatauskas, Akvilė Dulevičiūtė-Akimovienė, a senior adviser at the Private Law Unit of the Legal Department of the Office of the Seimas, and Pranas Žukauskas, a senior adviser at the Public Law Unit of the same department, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representatives of the Seimas, the party concerned, is substantiated by the following arguments.

3.1. According to the representatives of the party concerned, the Seimas Ombudsman is a specific entity (paragraph 1 of Article 73 of the Constitution), indicated in the Constitution among other state authorities and/or officials and not classified as a legislative, executive, or judicial authority within the meaning of paragraph 1 of Article 5 of the Constitution (ruling of 13 December 2006).

Referring to the provisions of the Republic of Lithuania’s Law on the Seimas Ombudsmen (wording of 4 November 2004) (hereinafter referred to as the Law on the Seimas Ombudsmen), the representatives of the party concerned point out, among others, that the Seimas Ombudsman, who is appointed by the Seimas of the Republic of Lithuania and whose decisions are of a recommendatory nature (Article 20), is a state official who protects human rights and freedoms, investigates the complainants’ complaints concerning the abuse of authority or bureaucratic intransigence by officials, and seeks to improve public administration (Article 5). Thus, according to the representatives of the party concerned, the Seimas Ombudsman does not perform the functions of public administration, although he/she is classified as a state official.

3.2. The representatives of the party concerned also point out that, under the Law on Administrative Proceedings, the administrative courts, when hearing administrative cases in accordance with the procedure laid down in that law, settle disputes arising from administrative legal relationships, i.e. those courts are empowered to settle disputes arising in the field of public administration, in particular disputes between persons and public administration entities.

3.3. Taking into account the fact that the Seimas Ombudsmen do not perform the functions of public administration and make only decisions of a recommendatory (non-binding) nature, and, at the same time, the fact that the administrative courts hear cases concerning disputes arising from administrative legal relationships in the field of public administration, the representatives of the party concerned draw the conclusion that the impugned legal regulation is constitutionally justified.

3.4. According to the representatives of the party concerned, the decision of the Seimas Ombudsman to refuse to consider a complaint does not violate the rights and freedoms of the person applying to him/her, because the legal dispute is between that person and the public administration entity (against whose certain acts a complaint has been lodged with the Seimas Ombudsman) appealed against by the complainant. The refusal of the Seimas Ombudsman to consider the complaint does not prevent the person from applying to a court for appealing against the actions (decision) of a public administration entity. In addition, in the opinion of the representatives of the party concerned, a person may apply to a court for the compensation of damages for actions of the Seimas Ombudsman. Thus, the petitioner’s right to a court is not violated.

III

The material received in the case

4. In the course of the preparation of the case for the hearing before the Constitutional Court, written opinions were received from Edita Žiobienė, the Ombudsperson for the Protection of Children’s Rights, Birutė Sabatauskaitė, the Equal Opportunities Ombudsperson, and Prof. Dr. Toma Birmontienė from Law School at Mykolas Romeris University.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. The petitioner requests an investigation into the constitutionality of paragraph 2 of Article 18 of the Law on Administrative Proceedings, insofar as, according to that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman to refuse to consider complaints.

6. On 14 January 1999, the Seimas adopted the Republic of Lithuania’s Law on Administrative Proceedings. That law has been amended and supplemented on more than one occasion, inter alia, by means of the Republic of Lithuania’s Law Amending the Law (No VIII-1029) on Administrative Proceedings, which was adopted by the Seimas on 2 June 2016, which, with the exceptions specified therein, came into force on 1 July 2016, and which set out the Law on Administrative Proceedings in its new wording.

6.1. It should be noted in connection with the aspect relevant to this constitutional justice case that the Law on Administrative Proceedings has established a procedure for hearing administrative cases concerning disputes arising from administrative legal relationships (paragraph 1 of Article 1), and it is also indicated in that law that the administrative courts resolve disputes in the field of public administration (paragraph 1 of Article 3). According to paragraph 1 of Article 2 of the Law on Administrative Proceedings, an administrative dispute is a conflict between a person and a public administration entity or between public administration entities that are not subordinate to each other, as well as an official or electoral dispute.

Thus, according to paragraph 1 of Article 1, paragraph 1 of Article 2, and paragraph 1 of Article 3 of the Law on Administrative Proceedings, the administrative courts settle disputes arising, inter alia, between a person and a public administration entity or between public administration entities that are not subordinate to each other.

6.2. In this context, mention should be made of the following provisions of Article 2, titled “Definitions”, of the Republic of Lithuania’s Law on Public Administration (wording of 28 May 2020):

– “public administration” means activities, regulated by means of legal acts, that are performed by public administration entities, where those activities are intended for the implementation of laws and other legal acts; the said activities are: administrative regulation, the adoption of administrative decisions, the supervision of the implementation of legal acts and administrative decisions, the provision of administrative services, the administration of the provision of public services (paragraph 18);

– “public administration entity” means a public legal person, a collegial or one-person institution without the status of a legal person, a natural person with a special status established by law, authorised to perform public administration in accordance with the procedure established by that law (paragraph 20); “the system of public administration entities” means the totality of public administration entities interconnected by subordination and coordination relationships (paragraph 21).

7. Paragraph 2 (which is impugned in this constitutional justice case) of Article 18, titled “Cases not Falling within the Competence of Administrative Courts”, of the Law on Administrative Proceedings provides: “The competence of the administrative courts shall not extend to investigating the activities of the President of the Republic, the Seimas, the members of the Seimas, the Prime Minister, the Government, the justices of the Constitutional Court, the Supreme Court of Lithuania, and of the Court of Appeal of Lithuania, other procedural actions of court judges, as well as of prosecutors, pre-trial investigation officials, and bailiffs, in connection with the administration of justice or the investigation of cases, as well as in connection with the execution of decisions, nor does the competence of the administrative courts extend to investigating the decisions of the Seimas Ombudsman or the Ombudsperson for the Protection of Children’s Rights.”

Thus, the legal regulation laid down in paragraph 2 of Article 18 of the Law on Administrative Proceedings expressis verbis determines the investigation of which activities, procedural actions, and decisions of the entities referred to in that paragraph does not fall within the competence of the administrative courts. According to that legal regulation, the competence of the administrative courts does not include the investigation of the activities of the President of the Republic, the Seimas, the members of the Seimas, the Prime Minister, the Government, the justices of the Constitutional Court, the Supreme Court of Lithuania, and of the Court of Appeal of Lithuania. In addition, paragraph 2 of Article 18 of the Law on Administrative Proceedings also provides that the administrative courts do not investigate other procedural actions of court judges, as well as of prosecutors, pre-trial investigation officials, and bailiffs, in connection with the administration of justice or the investigation of cases, as well as in connection with the execution of decisions. It should be noted in connection with the aspect relevant to this constitutional justice case that paragraph 2 of Article 18 of the Law on Administrative Proceedings also excludes the competence of the administrative courts to investigate the decisions of the Seimas Ombudsman or the Ombudsperson for the Protection of Children’s Rights.

Consequently, the legal regulation laid down in paragraph 2 of Article 18 of the Law on Administrative Proceedings provides expressis verbis that the administrative courts, which, as mentioned above, decide cases concerning disputes arising, inter alia, between a person and a public administration entity or between public entities not subordinate to each other, do not have competence to investigate, inter alia, decisions of the Seimas Ombudsman.

8. The provisions of the Law on the Seimas Ombudsmen that consolidate the status of the Seimas Ombudsmen, their powers, and the procedure for adopting their decisions are relevant to this constitutional justice case.

8.1. On 3 December 1998, the Seimas adopted the Republic of Lithuania’s Law on the Seimas Ombudsmen, which has been amended and supplemented by, inter alia, the Republic of Lithuania’s Law Amending the Law on the Seimas Ombudsmen (which was adopted by the Seimas on 4 November 2004 and came into force on 25 November 2004), by which the Law on the Seimas Ombudsmen was set out in its new wording.

That law establishes the basic legal principles of the activities and powers of the Seimas Ombudsmen, as well as the organisational structure of the Office of the Seimas Ombudsmen (Article 1).

In this context, it should be mentioned that the explanatory note to the Law Amending the Law on the Seimas Ombudsmen states, inter alia, that:

– the institution of the Seimas Ombudsmen is one of the instruments formed in Lithuania for the protection of human rights and freedoms and the control of the activities of the executive authorities; citizens have an opportunity not only to apply to a court for the protection of violated rights, but also to defend them out of court – by applying to the Seimas Ombudsmen; the purpose of the Seimas Ombudsmen is to protect human rights and freedoms by specific means and methods established in a special law;

– in their nature, the Seimas Ombudsmen are defenders of human rights, their purpose and mission is to find out what reasons have led to violations of the rights, which legal acts should be amended or supplemented, so that human rights would not be violated in the future.

8.2. Article 5, titled “The Seimas Ombudsman”, of the Law on the Seimas Ombudsmen provides that the Seimas Ombudsman is a state official appointed by the Seimas who protects human rights and freedoms, investigates the complainants’ complaints concerning the abuse of authority or bureaucratic intransigence by officials, and seeks to improve public administration, and paragraph 1 of Article 12, titled “Complaints within the Jurisdiction of the Seimas Ombudsmen”, provides that the Seimas Ombudsmen investigate complainants’ complaints concerning the abuse of authority or bureaucratic intransigence by officials or other violations of human rights and freedoms in the sphere of public administration.

Point 1 of Article 3 (wording of 7 December 2017), titled “The Objectives of the Activities of the Seimas Ombudsmen”, of that law provides that one of the objectives of the activities of the Seimas Ombudsmen is to protect a person’s right to good public administration securing human rights and freedoms, as well as to supervise fulfilment by state authorities of their duty to properly serve the people.

According to point 2 of Article 4, titled “The Basic Principles of the Activities of the Seimas Ombudsmen”, of the Law on the Seimas Ombudsmen, the Seimas Ombudsmen are guided, inter alia, by the principle of freedom and autonomy of activities, according to which the Seimas Ombudsmen are independent of other institutions, the rights and duties of each Seimas Ombudsman are equal, and each of them acts independently within their competence.

8.3. Paragraph 1 of Article 22, titled “The Decisions of the Seimas Ombudsman”, of the Law on the Seimas Ombudsmen provides that, when investigating a complaint, the Seimas Ombudsman may take one of the following decisions: to recognise the complaint as justified, to dismiss the complaint, or to discontinue the investigation of the complaint. Article 19 (as amended on 7 December 2017), titled “The Rights of the Seimas Ombudsman”, of that law points out the rights of the Seimas Ombudsman (inter alia, when he/she has investigated a complaint), such as the right to apply to certain institutions, establishments, or officials by providing information and/or proposals for adopting appropriate decisions on improving public administration ensuring human rights and freedoms.

According to the legal regulation laid down in paragraph 3 (wording of 20 June 2017) of Article 20, titled “Binding Character of the Seimas Ombudsmen’s Demands”, of the Law on the Seimas Ombudsmen, a proposal (or recommendation) of the Seimas Ombudsman must be examined by the institution, establishment, or official to whom that proposal (or recommendation) is addressed, informing without delay the Seimas Ombudsman about the results of such examination, but not later than within 30 days from the receipt of the proposal (or recommendation).

8.4. Summarising the legal regulation laid down in point 1 of Article 3 (wording of 7 December 2017), point 2 of Article 4, Article 5, paragraph 1 of Article 12, Article 19 (as amended on 7 December 2017), paragraph 3 (wording of 20 June 2017) of Article 20, and paragraph 1 of Article 22 of the Law on the Seimas Ombudsmen, it should be noted that the Seimas Ombudsman, who is appointed by the Seimas and is independent of other institutions, is a state official who acts in an autonomous manner, who defends human rights and freedoms, investigates complaints concerning the abuse of authority or bureaucratic intransigence by officials, seeks to improve public administration, and thus ensures the out-of-court protection of human rights and freedoms and exercises control over the activities of officials; after investigating a complaint submitted to him/her, the Seimas Ombudsman has the right to apply to certain institutions, establishments, or officials by submitting information and/or proposals for the adoption of decisions related to the improvement of public administration; although such proposals (or recommendations) submitted by the Seimas Ombudsman are of a recommendatory nature, the above-mentioned entities must examine them and provide information about the results of such examination within the time limits established in the Law on the Seimas Ombudsmen.

9. In the context of the constitutional justice case at issue, the provisions of paragraphs 1 and 2 of Article 17, titled “Refusal to Investigate a Complaint”, of the Law on the Seimas Ombudsmen are relevant. They provide:

“1. The Seimas Ombudsman shall make a decision to refuse to consider a complaint within 7 working days from the date of receipt thereof informing the complainant about this if:

(1) the Ombudsman comes to the conclusion that the complaint is of minor importance;

(2) the complaint is filed after the deadline set in Article 15 of this Law;

(3) the circumstances indicated in the complaint are outside the Seimas Ombudsman’s investigative jurisdiction;

(4) a complaint relating to the matter has already been resolved or is pending before a court;

(5) a procedural decision has been taken to open a pre-trial investigation in relation to the subject matter of the complaint;

(6) the Ombudsman comes to the conclusion on the expediency of investigating the complaint in another institution or establishment.

2. Where a decision is taken to refuse to consider a complaint, grounds for refusal must be specified. In the cases where the complaint falls outside the Seimas Ombudsmen’s competence, refusal to investigate shall also indicate the institution or establishment the complainant may address on the matter.”

Thus, paragraph 1 of Article 17 of the Law on the Seimas Ombudsmen enshrines the right of the Seimas Ombudsman to make a decision to refuse to consider a received complaint, as well as an exhaustive list of grounds where in the presence of at least of one of the said grounds such a decision of the Seimas Ombudsman is made. Paragraph 2 of that article contains the requirements for the decision of the Seimas Ombudsman to refuse to consider a complaint, i.e. such a decision must specify the specific grounds, consolidated in paragraph 1 of the same article, for refusal to examine the complaint and, in cases where the complaint does not fall within the competence of the Seimas Ombudsman, an institution or establishment must be indicated to which the person will be able to apply. Consequently, according to paragraphs 1 and 2 of Article 17 of the Law on the Seimas Ombudsmen, the decision of the Seimas Ombudsman to refuse to consider a complainant’s complaint must be reasoned in all cases, among others, by indicating one of the grounds, consolidated in paragraph 1 of that article, for refusal to examine the complaint.

10. When interpreting the impugned legal regulation, enshrined in paragraph 2 of Article 18 of the Law on Administrative Proceedings, in the context of the above-mentioned provisions of the Law on the Seimas Ombudsmen governing the objectives, legal grounds, and powers of the Seimas Ombudsmen, inter alia, in the context of paragraphs 1 and 2 of Article 17 of the latter law, regulating the grounds for refusing to consider complaints and the duty to reason the decisions to refuse to consider complaints, also in the context of the provisions of Article 2 of the Law on Public Administration (wording of 28 May 2020), it should be noted that the competence of the administrative courts, which deal with disputes in the field of public administration, does not include the investigation of, among others, the decisions of the Seimas Ombudsmen – independent state officials acting in an autonomous manner – who defend human rights and freedoms, investigate complainants’ complaints concerning the abuse of authority or bureaucratic intransigence by officials, and seek to improve public administration, inter alia, the said competence does not extend to investigating the decisions of the Seimas Ombudsmen to refuse to consider complaints on the grounds established by law.

11. It should also be mentioned in connection with the aspect relevant to this constitutional justice case that the Supreme Administrative Court of Lithuania has noted that the Seimas Ombudsman, although not directly performing public administration functions, falls within the category of state officials (inter alia, the order of 15 May 2015 in administrative case no AS-751-575/2015 and the order of 16 November 2016 in administrative case no AS-812-552/2016); the restriction of the competence of the administrative courts concerning the decisions of the Seimas Ombudsman is mainly associated with the legal consequences of such decisions; the final acts resulting from an investigation carried out by the Seimas Ombudsman are of a recommendatory nature only and do not directly create any rights or obligations for either the complainant or the public administration entity against whose decisions, actions, or omissions the complaint has been lodged with the Seimas Ombudsman; therefore, complaints against the said final acts of the Seimas Ombudsman may not be lodged with an administrative court (inter alia, the order of 16 April 2010 in an administrative case no AS556-249/2010 and the order of 31 August 2012 in administrative case no AS444-611/2012).

12. In the context of this constitutional justice case, mention should be made of the provisions of the Principles on the Protection and Promotion of the Ombudsman Institution, adopted by the European Commission for Democracy through Law (Venice Commission) (acting as an advisory body to the Council of Europe on constitutional matters) at its 118th Plenary Session on 15–16 March 2019.

It is noted in the Principles on the Protection and Promotion of the Ombudsman Institution that independence is among the core principles of the Ombudsman Institution; the Ombudsman is an important institution in a state based on democracy, the rule of law, the respect for human rights and fundamental freedoms and good administration, taking action independently against maladministration and alleged violations of human rights and fundamental freedoms affecting individuals or legal persons; the right to complain to the Ombudsman is an addition to the right of access to justice through the courts (preamble); the state must refrain from taking any action undermining the independence of the Ombudsman Institution, or aiming at or resulting in the suppression of the Ombudsman Institution or in any hurdles to its effective functioning, and must effectively protect it from any such threats (points 1, 24); the mandate of the Ombudsman must cover prevention and correction of maladministration, and the protection and promotion of human rights and fundamental freedoms (point 12); the Ombudsman must not be given nor follow any instruction from any authorities (point 14); the Ombudsman must have the power to address individual recommendations to any bodies or institutions within the competence of the Institution (point 17); states are encouraged to undertake all necessary actions so as to provide proper conditions that strengthen and develop the Ombudsman Institutions and their capacity, independence and impartiality in the spirit and in line with the Venice Principles and thus ensure their proper, timely, and effective implementation (point 25).

13. In the context of this constitutional justice case, it should also be mentioned that the European Court of Human Rights has, among other things, noted, that a complaint to the Seimas Ombudsman is not regarded as an effective legal remedy within the meaning of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the applicants have no obligation to exhaust that remedy under paragraph 1 of Article 35 of that Convention because, although independent of the executive, the Seimas Ombudsmen do not have the power to take decisions binding on the authorities (inter alia, the ECtHR, the decision on admissibility of 14 March 2000, Valašinas v Lithuania, no 44558/98; the judgment of 8 December 2015, Mironovas and others v Lithuania, nos 40828/12, 69598/12, 70048/13, 70065/13, paragraphs 107, 109, and 110).

14. It should also be noted in connection with the aspect relevant to this constitutional justice case that Article 43, titled “European Ombudsman”, of the Charter of Fundamental Rights of the European Union, provides that any citizen of the European Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices, or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role. In the case law of the Court of Justice of the European Union, recourse to this institution of the Ombudsman is considered as an alternative non-judicial remedy to the infringed rights; that alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings (Court of First Instance, the judgment of 10 April 2002, Frank Lamberts v European Ombudsman, T-209/00, paragraph 65); complaints to the Ombudsman, on the one hand, make it possible to identify and to seek to eliminate instances of maladministration on behalf of the public interest and, on the other hand, may make it possible to avoid judicial proceedings if the Ombudsman succeeds in resolving the differences between the complainant and the institution concerned; those concerned are free to choose to have recourse to the Ombudsman (Court of Justice, the judgment of 28 June 2007, Internationaler Hilfsfonds, C‑331/05 P, paragraphs 26–27); the Ombudsman “enjoys very wide discretion as regards the merits of complaints and the way in which he deals with them, and in so doing he is under no obligation as to the result to be achieved” (among others, the Court of First Instance, the judgment of 10 April 2002, Frank Lamberts v European Ombudsman, T-209/00, paragraphs 50, 52; the General Court, the judgment of 29 April 2015, T‑217/11, Claire Staelen v European Ombudsman, paragraph 76).

II

The provisions of the Constitution and the official constitutional doctrine

15. In this constitutional justice case, the Constitutional Court investigates whether paragraph 2 of Article 18 of the Law on Administrative Proceedings, insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman to refuse to consider complaints, is in conflict with paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

16. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law integrates various values consolidated, protected, and defended under the Constitution, as well as that the content of this constitutional principle is revealed in various provisions of the Constitution; the essence of this principle is the rule of law; 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 rulings of 29 June 2010, 19 November 2015, and 7 December 2020).

16.1. The content of the constitutional principle of a state under the rule of law must be disclosed in the light of the content of various other constitutional principles, such as responsible governance and other constitutional principles of no less importance; the constitutional principle of a state under the rule of law is also reflected in paragraphs 2 and 3 of Article 5 of the Constitution, which stipulate that the scope of power is limited by the Constitution and that state institutions serve the people and which enshrine the constitutional principles of responsible governance and the responsibility of state authorities to the public (inter alia, the rulings of 12 April 2018, 19 December 2019, and 13 May 2021). According to 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, in implementing their functions, institutions that exercise state power may not exceed the powers conferred on them by the Constitution and laws (rulings of 2 March 2018 and 13 May 2021).

16.2. The Constitutional Court has also held that every state or municipal institution through which state functions are performed, as well as every state servant, must pay regard to the requirements of lawfulness; state servants must not abuse the powers established for them and must not violate requirements of legal acts (ruling of 13 December 2004); state institutions and its officials must protect and defend human rights and freedoms; it is very important that, while fulfilling the functions entrusted to them, state institutions and officials themselves not violate human rights and freedoms (rulings of 30 June 2000 and 13 December 2004).

17. The right of a person to apply to a court is an inseparable element of the content of the principle of a state under the rule of law and a necessary condition for the implementation of justice (inter alia, the rulings of 17 March 2003, 17 November 2003, and 25 January 2013). Paragraph 1 of Article 30 the Constitution, which provides that a person whose constitutional rights or freedoms are violated has the right to apply to a court, consolidates the constitutional principle of judicial protection; in a democratic state, courts are the main institutional guarantee of human rights and freedoms (inter alia, the rulings of 18 April 1996, 2 July 2002, and 19 March 2021).

The Constitutional Court has noted that, according to the Constitution, a person who thinks that his/her rights and freedoms are violated has the right to defend his/her rights and freedoms before a court (inter alia, the rulings of 2 July 2002, 7 February 2005, and 19 March 2021); the violated rights and legitimate interests of persons must be defended before a court regardless of whether or not they are directly consolidated in the Constitution (inter alia, the rulings of 8 May 2000, 13 May 2010, and 19 March 2021); the rights of a person must be defended not in a perfunctory manner, but in reality and effectively against the unlawful actions of both private persons and state institutions (inter alia, the rulings of 8 May 2000, 28 March 2006, and 18 April 2019); the legislature must clearly establish in laws in what manner and with what court persons can lodge their applications in order that they would implement in reality their right to apply to a court regarding the violation of their rights and freedoms (inter alia, the rulings of 29 December 2004, 27 November 2006, and 13 May 2010).

18. In the context of this constitutional justice case, it should also be mentioned that, according to paragraph 2 of Article 33 of the Constitution, citizens are guaranteed the right to appeal against decisions of state institutions or officials. In its ruling of 26 January 2006, the Constitutional Court held that the right to appeal against decisions of state institutions or officials, which is guaranteed for citizens under paragraph 2 of Article 33 of the Constitution, is one of the rights by implementing which citizens may also participate in the governance of their state.

19. The Constitutional Court has also noted that the nature of the democratic institutions of power is that all persons who implement the political will of the people are controlled in various forms, so that this will would not be distorted (decision of 29 May 1996 and the ruling of 13 December 2004); in addition to state institutions exercising state power, the Constitution also mentions “institutions of control” (paragraph 3 of Article 73 of the Constitution) (ruling of 13 December 2004); among the other state institutions (or officials) pointed out in the Constitution that are not classified under paragraph 1 of Article 5 thereof as either legislative, executive, or judicial authorities, there are also the Seimas Ombudsmen (paragraph 1 of Article 73 of the Constitution) (rulings of 13 December 2004 and 30 December 2015).

19.1. Paragraph 1 of Article 73 of the Constitution prescribes: “Complaints of citizens about the abuse of authority or bureaucratic intransigence by state and municipal officials (with the exception of judges) shall be examined by the Seimas Ombudsmen, who shall have the right to submit a proposal before a court for dismissing the guilty officials from office.”

Thus, under paragraph 1 of Article 73 of the Constitution, the Seimas Ombudsmen are an independent and autonomously operating institution exercising control over state and municipal officials (except judges), assisting in ensuring the implementation of the imperatives of responsible governance, the responsibility of state authorities to society, and the protection of human rights and freedoms, which arise, inter alia, from the constitutional principle of a state under the rule of law, and performing the function of controlling the activities of state and municipal officials (except judges) in order to protect human rights and freedoms from arbitrariness, abuse of authority, or bureaucratic intransigence by state or municipal officials. When investigating complaints concerning the abuse of established powers by state and municipal officials (except judges) or the exceeding of powers conferred on them by law, as well as bureaucratic intransigence or breaches of legal requirements by the said officials, thus defending human rights and freedoms, the Seimas Ombudsmen are an additional (subsidiary) guarantor of the protection of human rights and freedoms.

19.2. Paragraph 2 of Article 73 of the Constitution provides that the powers of the Seimas Ombudsmen are established by law. Thus, according to the Constitution, the legislature has the discretion to establish the powers of the Seimas Ombudsmen exercised by them when investigating complaints concerning the abuse of authority or bureaucratic intransigence by state and municipal officials (with the exception of judges), inter alia, to regulate the conditions for lodging complaints with the Seimas Ombudsmen, the procedure for investigating them, and the grounds for refusal to consider complaints. In doing so, the legislature must pay regard to the imperatives stemming from the Constitution.

20. In the context of this constitutional justice case, it should be noted that, according to the Constitution, inter alia, paragraph 1 of Article 30 thereof, and the constitutional principle of a state under the rule of law, the decision by the Seimas Ombudsman (who exercises, in accordance with paragraph 1 of Article 73 of the Constitution, the constitutional function entrusted to it to investigate complaints concerning the abuse of authority or bureaucratic intransigence by state and municipal officials, is an additional (subsidiary) guarantor of the protection of human rights) to refuse to consider a complaint must not in itself be considered as creating the preconditions for denying or excessively restricting a person’s constitutional right to apply to a court against actions and/or decisions of state or municipal officials by which the constitutional rights or freedoms of that person are violated.

III

The assessment of the constitutionality of the provision of paragraph 2 of Article 18 of the Law on Administrative Proceedings (wording of 2 June 2016)

21. As mentioned before, the petitioner requests an investigation into the compliance of paragraph 2 of Article 18 of the Law on Administrative Proceedings, insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman to refuse to consider complaints, with paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

22. According to the petitioner, the impugned legal regulation precludes challenging in a court decisions taken by a state official – the Seimas Ombudsman – to refuse to consider complaints even if such decisions are unfounded; this limits the right of persons to apply to a court, which is consolidated in paragraph 1 of Article 30 of the Constitution, and violates the constitutional principle of a state under the rule of law.

23. It has been mentioned that, according to the impugned legal regulation, enshrined in paragraph 2 of Article 18 of the Law on Administrative Proceedings, when interpreted, inter alia, in the context of other provisions of the Law on Administrative Proceedings, as well as in the context of the Law on the Seimas Ombudsmen, inter alia, paragraphs 1 and 2 of Article 17 thereof, the competence of the administrative courts, which deal with disputes in the field of public administration, does not include the investigation of, among others, the decisions of the Seimas Ombudsmen – independent state officials acting in an autonomous manner – who defend human rights and freedoms, investigate complainants’ complaints concerning the abuse of authority or bureaucratic intransigence by officials and seek to improve public administration, inter alia, the said competence does not extend to investigating the decisions of the Seimas Ombudsmen to refuse to consider complaints on the grounds established by law.

24. It has also been mentioned that paragraph 1 of Article 17 of the Law on the Seimas Ombudsmen consolidates an exhaustive list of grounds where in the presence of at least of one of the said grounds the decision of the Seimas Ombudsman to refuse to consider a complaint is made, and that paragraph 2 of that article contains the requirements for the decision of the Seimas Ombudsman to refuse to consider a complaint, i.e. such a decision must specify the specific grounds, consolidated in paragraph 1 of the same article, for refusal to examine the complaint and, in cases where the complaint does not fall within the competence of the Seimas Ombudsman, an institution or establishment must be indicated to which the person will be able to apply; consequently, according to paragraphs 1 and 2 of Article 17 of the Law on the Seimas Ombudsmen, the decision of the Seimas Ombudsman to refuse to consider a complainant’s complaint must be reasoned in all cases, among others, by indicating one of the grounds, consolidated in paragraph 1 of that article, for refusal to examine the complaint.

25. When deciding whether paragraph 2 of Article 18 of the Law on Administrative Proceedings, insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman to refuse to consider complaints, is in conflict with paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

– the right of a person to apply to a court, which is enshrined in paragraph 1 of Article 30 of the Constitution, is an inseparable element of the content of the principle of a state under the rule of law and a necessary condition for the implementation of justice; in a democratic state, courts are the main institutional guarantee of human rights and freedoms; the rights of a person must be defended not in a perfunctory manner, but in reality and effectively;

– among the state institutions (or officials) pointed out in the Constitution that are not classified under paragraph 1 of Article 5 thereof as either legislative, executive, or judicial authorities, there are the Seimas Ombudsmen, who are mentioned in paragraph 1 of Article 73 of the Constitution;

– under paragraph 1 of Article 73 of the Constitution, the Seimas Ombudsmen are an independent and autonomously operating institution exercising control over state and municipal officials (except judges), assisting in ensuring the implementation of the imperatives of responsible governance, the responsibility of state authorities to society, and the protection of human rights and freedoms, which arise, inter alia, from the constitutional principle of a state under the rule of law, and performing the function of controlling the activities of state and municipal officials (except judges) in order to protect human rights and freedoms from arbitrariness, abuse of authority, or bureaucratic intransigence by state or municipal officials;

– according to the Constitution, inter alia, paragraph 1 of Article 30 thereof, and the constitutional principle of a state under the rule of law, the decision by the Seimas Ombudsman (who exercises, in accordance with paragraph 1 of Article 73 of the Constitution, the constitutional function entrusted to him/her to investigate complaints concerning the abuse of authority or bureaucratic intransigence by state and municipal officials and is an additional (subsidiary) guarantor of the protection of human rights) to refuse to consider a complaint must not in itself be considered as creating the preconditions for denying or excessively restricting a person’s constitutional right to apply to a court against actions and/or decisions of state or municipal officials by which the constitutional rights or freedoms of that person are violated.

25.1. It should be noted that the decision of the Seimas Ombudsman to refuse to consider complaints concerning the abuse of authority or bureaucratic intransigence by officials, whose investigation does not fall within the competence of the administrative courts under the impugned paragraph 2 of Article 18 of the Law on Administrative Proceedings, does not prevent a person who considers that his/her constitutional rights or freedoms are violated by means of the respective actions (or inaction) and/or decisions of state or municipal officials from applying to a court, including for possible abuse of authority or bureaucratic intransigence by state and municipal officials. A person may exercise the constitutional right to apply to a court, which is guaranteed, inter alia, in paragraph 1 of Article 30 of the Constitution, independently of the decisions taken by the Seimas Ombudsman regarding a complaint submitted to him/her, i.e. regardless of whether the Seimas Ombudsman (who, according to the Constitution, inter alia, paragraph 1 of Article 73 thereof, is an independent and autonomously operating additional (subsidiary) extra-judicial institution for the protection of human rights, assists in ensuring the implementation of the imperatives of responsible governance, the responsibility of state authorities to society, and the protection of human rights and freedoms, which arise from the constitutional principle of a state under the rule of law, and performs the function of controlling the activities of state and municipal officials (except judges)) has examined the complaint of that person and submitted appropriate proposals (or recommendations) in accordance with Article 19 (as amended on 7 December 2017) of the Law on the Seimas Ombudsmen or has refused to consider it on the grounds laid down in paragraph 1 of Article 17 of that law.

25.2. It should also be noted that the violation of the rights of a person who filed a complaint with the Seimas Ombudsman arises not from the refusal (which is outside the jurisdiction of the administrative courts under paragraph 2 of Article 18 of the Law on Administrative Proceedings) of the Seimas Ombudsman to investigate the complaint on the basis established by law, but from the actions of a state or municipal official that were appealed before the Seimas Ombudsman and that may also be appealed before the administrative courts under the Law on Administrative Proceedings and also under the provisions of the Law on Public Administration; in other words, the legal dispute originates between a person and a state or municipal institution or a state or municipal official due to whose activity the person applies to the Seimas Ombudsman.

25.3. Thus, it should be held that there are no grounds for stating that the impugned legal regulation, consolidated in paragraph 2 of Article 18 of the Law on Administrative Proceedings, under which the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman, including such decisions that refuse to consider the complaint on the grounds established in the Law on the Seimas Ombudsmen, creates the preconditions for denying or excessively restricting the constitutional right of a person to apply to a court, or for violating the imperative of justice, arising from the constitutional principle of a state under the rule of law.

26. Taking into account the foregoing arguments, the conclusion should be drawn that paragraph 2 of Article 18 of the Law on Administrative Proceedings, insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Seimas Ombudsman to refuse to consider complaints on the grounds laid down in the Law on the Seimas Ombudsmen, is not in conflict with paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

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:

To recognise that paragraph 2 of Article 18 of the Republic of Lithuania’s Law on Administrative Proceedings (wording of 2 June 2016, the Register of Legal Acts, 2016, No 16849), insofar as, under that paragraph, the competence of the administrative courts does not extend to investigating the decisions of the Ombudsman of the Seimas of the Republic of Lithuania to refuse to consider complaints on the grounds laid down in the Republic of Lithuania’s Law on the Seimas Ombudsmen, is not in conflict with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court: Elvyra Baltutytė
                                                                      Gintaras Goda
                                                                      Vytautas Greičius
                                                                      Danutė Jočienė
                                                                      Giedrė Lastauskienė
                                                                      Vytautas Mizaras
                                                                      Algis Norkūnas
                                                                      Daiva Petrylaitė
                                                                      Janina Stripeikienė