Home activities The Independence of the Constitutional Court: Recent Developments and Challenges

The Independence of the Constitutional Court: Recent Developments and Challenges

148
SHARE

In a democracy and a state governed by the rule of law, independence is part and parcel of the concept of a court: a court dependent on the legislative or executive branch of power may not be considered a court at all. Therefore, the actual situation of the independence of courts reflects the democratic maturity of the state and indicates whether the state has the characteristics typical of the rule of law, as, e.g., whether the principle of the separation of powers is implemented in the state and whether human rights are respected.[1] It is not accidental that the Constitutional Court of the Republic of Lithuania (hereinafter referred to as the Constitutional Court) has been consistent in holding that the independence of judges and courts is one of the essential principles of a democratic state under the rule of law and an essential condition for the protection of human rights and freedoms; it is not a privilege but one of the main duties of a judge and courts.[2]

The Constitutional Court is part of the judiciary;[3] therefore, the Constitutional Court and the justices of the Constitutional Court have most of the general guarantees of independence, similar to those enjoyed by other courts.

First of all, Article 114(1) of the Constitution provides that interference by any institutions of state power and governance, members of the Seimas (Parliament) or other officials, political parties, political or public organisations, or citizens with the activities of a judge or court is prohibited and leads to responsibility provided for by law.[4] As established in the Law on the Constitutional Court, the President or a justice of the Constitutional Court must immediately inform the Seimas of the attempts to influence the Constitutional Court or any of its justices, and must make the fact of attempted influence publicly known through public mass media.[5] Rallies, pickets, and other actions staged within 75 metres of the building of the Constitutional Court or at the Court itself, if they are aimed at influencing a justice or the Court, are considered to constitute an interference with the activities of the justice or the Court.[6]

Secondly, the requirements governing the secrecy of the deliberation room and voting are established: it is prohibited by law to make publicly known the positions voiced in the deliberation room or disclose in which way the justices voted.[7]

Thirdly, the main principles concerning the social (material) guarantees of judges also apply to the justices of the Constitutional Court. It is consistently established in the official constitutional doctrine formulated by the Lithuanian Constitutional Court that these guarantees (including those that are granted to judges upon the expiry of their powers) must be real and compatible with the constitutional status of judges and their dignity.[8] The global economic crisis determined that, during several last years, the Constitutional Court had to deal with the requirements stemming from the Constitution specifically in relation to this area. In the ruling of 1 July 2013, the Constitutional Court held that the reduction of the level of social guarantees for judges and the worsening of material provision for courts in the absence of any economic crisis, as well as any disproportionate and discriminatory reduction or worsening of such social (material) guarantees during an economic crisis, should be regarded as an attempt to infringe the independence of courts (and judges).[9] This official constitutional doctrine was further developed in the decision of 14 January 2015, in which the Constitutional Court elaborated on the constitutional requirements related to the state pensions of judges. In this decision, the Constitutional Court emphasised that the social (material) guarantees of judges must be real and stable in order to ensure the independence of judges. Failure to ensure the reality and stability of these guarantees would create the preconditions for increasing the risk of corruption and the preconditions for such decisions of the legislative, executive, or public administration subjects by means of which the social (material) guarantees of judges would be reduced and pressure would be put on decisions taken in administering justice.

Fourthly, the Constitution guarantees the personal inviolability of judges.[10] Article 104(4) of the Constitution provides that the justices of the Constitutional Court have the same rights concerning the inviolability of their person as the members of the Seimas. This guarantee is specified in greater detail in the Law on the Constitutional Court: the justices of the Constitutional Court may not be held criminally liable or be detained, or have their liberty restricted otherwise, without the consent of the Seimas, save in the cases when they are found in the act of committing a crime (in flagrante). Entering the residential or office premises of a justice of the Constitutional Court, the inspection or search of such premises, making a seizure in these premises, the inspection or search of personal or service automobiles or other personal means of transport, or making a seizure in them, the bodily inspection or search of a justice, or the inspection or seizure of his/her items or documents are prohibited unless a criminal case has been instituted against the justice of the Constitutional Court according to the established procedure.[11]

Fifthly, Article 104(3) of the Constitution provides that limitations established on work and political activities for the judges of courts also apply to the justices of the Constitutional Court. Under Article 113 of the Constitution, judges may not hold any other elective or appointive office, or work in any business or other private establishments or enterprises. Nor may they receive any remuneration other than the remuneration established for judges and payment for educational or creative activities. Judges may not participate in the activities of political parties or other political organisations.

The special status of the Constitutional Court in the system of judicial power determines the consolidation of specific guarantees of its independence.

First of all, the Constitutional Court is not subject to administration by the National Courts Administration and the Council of Judges. The Constitutional Court also has organisational autonomy in establishing the procedure for the organisation of work and in deciding its internal questions, the rules of the professional conduct of justices, the structure of the apparatus of the Court, clerical work, and other issues (these questions are regulated by the Rules of the Constitutional Court, approved by the Constitutional Court).

In addition, the Constitutional Court enjoys special financial, material-technical, as well as organisational guarantees, established in the Law on the Constitutional Court. For example, the Constitutional Court approves the estimate of expenditure and independently disposes of the funds allocated to it; the premises and other assets used by the Constitutional Court may not be taken over or transferred to other subjects without the consent of the Constitutional Court.[12]

And finally, no disciplinary actions may be taken against any justice of the Constitutional Court. The questions of service-related responsibility of a justice of the Constitutional Court and issues regarding the non-performance or improper performance of duties are decided by the Constitutional Court itself. Article 12 of the Law on the Constitutional Court provides that failure to carry out the established duties or attend a sitting of the Court without good reason may lead to a pecuniary penalty—reduction of salary.

Turning to certain threats to the independence of the Constitutional Court and/or its justices, it should be noted that most of the initiatives potentially endangering the independence of the Constitutional Court emerged during the global economic crisis and in its aftermath. However, although talks or even legislative initiatives aimed at curtailing the competence of the Constitutional Court or restricting its independence recur from time to time, there have been no major actual attempts, with the exception of the legislation that was adopted during the economic crisis and disproportionately reduced the salaries of the justices of the Constitutional Court.

In 2009, a legal regulation was established on reducing the coefficients of the salaries of judges. The salaries were subject to various reduction rates in percentage points: from 17.69 per cent (judges of the Court of Appeal, chairpersons of the divisions of regional courts, vice presidents of regional administrative courts) to 35.06 per cent (justices of the Constitutional Court). Thus, the salaries of the President and justices of the Constitutional Court were subject to much higher reduction rates in percentage points than the remuneration of other judges or civil servants. At the same time, the preconditions were put in place for making the salaries of the justices of the Constitutional Court either equal to or even lower than the salaries of some judges of the courts of general competence or specialised courts.

Therefore, these reduction measures ruined the remuneration system of judges. The Constitutional Court, in its ruling of 1 July 2013, found that such measures had introduced a disproportionate scale of the reduction of the salaries of judges and violated the proportions of the salary rates that had been applicable to different categories of judges before the extremely severe economic and financial situation; these measures also distorted the proportions of the amounts of the salaries established for judges and other individuals (civil servants, state politicians and officials, prosecutors). Thus, such measures were found not in compliance with the constitutional criteria applicable to the reduction of the salaries of individuals receiving salaries from the state or municipal budgets (at the same time, no regard was paid to the provision of Article 48(1) of the Constitution, which stipulates that everyone has the right to receive fair pay for work). Ultimately, the Constitutional Court emphasised that such a disproportionate and discriminatory reduction in the remuneration of judges should be viewed as an attempt to infringe the independence of judges and courts.

Furthermore, at the time of the payment of the reduced salaries of judges, some “privileged” groups of civil servants, officials, and politicians (some prosecutors, heads and members of certain state bodies and councils) were singled out in 2012 to benefit from the salaries re-established to the pre-crisis level, or even increased above the pre-crisis level.

In the context of the material (social) guarantees of courts and judges, it is worth mentioning that, although the rulings of the Constitutional Court are normally implemented efficiently, the ruling of 29 June 2010, in which the Constitutional Court held unconstitutional the legal regulation on calculating the amounts of the state pensions of judges, has not been implemented so far. In the said ruling, the Constitutional Court held that, in consolidating the maximum size of the state pensions of judges, no account had been taken of the particularities of separate court systems, including the fact that the justices of the Constitutional Court are appointed for a single nine-year term of office. Thus, the provisions of the Law on the State Pensions of Judges, to the extent that the maximum nine-year term of the office of a justice of the Constitutional Court was not regarded to be a sufficient independent basis for granting the state pension of judges of the maximum size, were ruled to be in conflict with the Constitution. The Constitutional Court also ruled unconstitutional the legal regulation that, on the one hand, had created the preconditions for equalising the sizes of state pensions for judges whose length of service as a judge differed considerably and, on the other hand, had created the preconditions for granting the state pensions of judges of a considerably different size to those judges whose length of service as a judge differed insignificantly.

The Constitutional Court postponed the official publication of its ruling of 29 June 2010 for more than four months, but the legislator did not take any actions during that period and following its expiry up until the present day in order to amend the laws and bring them in line with the Constitution. Therefore, the amount of the state pensions of judges at present is fixed on the basis of the Regulations on Granting and Paying the State Pensions of Judges, as approved by the Government resolution of 21 January 2003, and the orders of the Director of the National Courts Administration. Obviously, such a situation, where the key issues related to the state pensions of judges are not regulated by means of a law, does not contribute to the material security and certainty of the future of judges: judges may never definitely know what their pension entitlement could be upon the expiry of the term of their judicial office. Moreover, this inaction by the legislature may be considered to constitute not only a threat to the independence of judges but also a certain threat to the institutional independence of the Constitutional Court due to the said non-compliance with and disregard of the ruling of the Constitution Court, i.e. a certain legal nihilism at the top political level.

In relation to the challenges to the independence of the Constitutional Court, mention can be made of certain initiatives that were not implemented. As a rule, such initiatives follow after the Constitutional Court adopts rulings that find no favour among certain politicians. For instance, following the adoption of the ruling of 1 July 2013 concerning the reduction of the remuneration of state servants and judges, the media released a number of statements by politicians claiming that the Constitutional Court allegedly took over the legislative and executive powers in the area of the economic policy (which, in fact, can be recognised as false statements by any individual who is, at least to some extent, familiar with constitutional law and the constitutional doctrine developed by the Constitutional Court);[13] these statements also included threatening to restrict the competence of the Constitutional Court or even to eliminate this institution altogether. One member of the Seimas even started collecting the signatures of other parliamentarians for the amendment of the Constitution to eliminate the Constitutional Court by transferring its functions to the Supreme Court.[14]

Public calls to follow the example of Hungary, which limited the powers of its Constitutional Court in adopting decisions on budget formation and tax policy issues in 2010, were voiced after the Constitutional Court had adopted its rulings concerning the transfer of a share of personal income tax to municipal budgets[15] and concerning the imposition of tax on immovable property.[16]

During several previous years, especially in 2013-2014, a number of draft laws with the aim of limiting the powers of the Constitutional Court or otherwise impeding its activities were registered. Among these proposals, the following can be mentioned:

  • the Draft Law Amending Article 84 of the Law on the Constitutional Court, which contained the proposal to provide that the rulings of the Constitutional Court and decisions regarding the interpretation of the rulings of the Constitutional Court come into effect only after their implementation according to the procedure set out in the Statute (i.e. rules) of the Seimas;[17]
  • the Draft Law Amending Article 19 of the Law on the Constitutional Court, which included the requirement that the results of voting on the final acts of the Constitutional Court be announced publicly;[18] an analogous draft law was registered in April 2016.[19] It should be noted that the secrecy of the deliberation room and voting, aimed at ensuring the independence of the judges of constitutional courts, is established in Austria, Belgium, Estonia, France, Germany, Italy, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Spain, and the Czech Republic. In Belgium and Italy, the disclosure of voting secrecy is a criminal offense;
  • the Draft Law Amending Article 19 of the Law on the Constitutional Court, which proposed changing the present quorum of 2/3 of the justices of the Constitutional Court required for considering cases and adopting rulings, conclusions, or decisions, by raising it to eight justices;[20]
  • the Draft Law Amending Article 17 of the Law on the Constitutional Court, which proposed reducing the distance for staging rallies, pickets, or other actions from 75 to 25 metres of the building of the Constitutional Court;[21]
  • in June 2015, the Committee on Budget and Finance of the Seimas proposed that the Government draw up amendments prohibiting the Constitutional Court from handing down decisions on national financial and economic matters.[22]

In this context, it should be noted that all of the above political initiatives to eliminate the Constitutional Court, to limit its powers, or to hinder its activities are clear manifestations of the attempts by some politicians either to control the Constitutional Court so that it remains completely obedient to them or to have freedom to act without any constitutional control over them in certain areas of economy and finances. It is rather ironic as this reminds us of the pitiful Soviet regime, where there was no constitutional control whatsoever, and courts were under control of the omniscient Communist Party. However, as none of the above initiatives have been implemented, they may not be viewed as posing a direct threat to the institutional independence of the Constitutional Court.

It can be concluded that the Constitutional Court of the Republic of Lithuania was established as the highest judiciary institution independent from any political influence, and has remained such over the whole period of 23 years of its activity. At the same time, I am particularly concerned about our colleagues from Poland, Georgia, and some other European constitutional courts that are today obliged to fight in order to protect their independence and what they have succeeded to create over several decades. This is all the sadder as certain constitutional courts have abandoned independence without any struggle.

[1] Žalimas D., Pūraitė-Andrikienė D., Masnevaitė E. The Independence of Courts and Legal Dispute Resolution. In: Kūris E. (Ed.). Crisis, the Rule of Law and Human Rights in Lithuania. Šiauliai, 2015, p. 296.

[2] Constitutional Court’s rulings, inter alia, of 6 December 1995 and 14 February 2011.

[3] See the Constitutional Court’s ruling of 6 June 2006.

[4] Article 114(1) of the Constitution, Article 17(3) of the Law on the Constitutional Court.

[5] Article 17(4) of the Law on the Constitutional Court.

[6] Article 17(5) of the Law on the Constitutional Court.

[7] Article 53(3) of the Law on the Constitutional Court.

[8] The Constitutional Court’s ruling, inter alia, of 12 July 2001 and decision, inter alia, of 14 January 2015.

[9] The Constitutional Court’s ruling of 1 July 2013.

[10] Article 114: „Judges may not be held criminally liable or be detained, or have their liberty restricted otherwise, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic of Lithuania“.

[11] Article 8 of the Law on the Constitutional Court.

[12] Article 51 of the Law on the Constitutional Court.

[13] The Constitutional Court has no power, on its own initiative, to start considering cases without a petition from subjects entitled to apply to the Constitutional Court. In addition, the Constitutional Court follows the self-restraint doctrine and does not decide on the issues of economic policy, i.e. the Court does not consider whether economic decisions are justified or appropriate; the Court relies on information from the legislature and the Government on these matters. Thus, the Constitutional Court has never decided whether the country is really in a difficult economic and financial situation or whether the austerity measures are indeed necessary (i.e. whether they are expedient and whether there are no alternatives). The Constitutional Court assesses austerity measures only in terms of legal proportionality. See, for example, the Constitutional Court’s ruling of 31 May 2006.

[14] In one interview, the said member of the Seimas pointed to the above-mentioned ruling of the Constitutional Court of 1 July 2013 as one of the reasons behind the initiative. See “Konstitucinė krizė” [Constitutional crisis], <http://www.tiesos.lt/index.php/tinklarastis/straipsnis/aurelija-stancikiene.-konstitucine-krize>.

[15] In its ruling of 11 June 2015, the Constitutional Court ruled that the provisions of the Law on the Methodology for Determining Municipal Budgetary Revenues regulating the calculation and distribution of funds allocated from personal income tax to municipal budgets had been unconstitutional, as they had failed to establish clear criteria for calculating a share of personal income tax allocated for each municipality.

[16] In its ruling of 22 September 2015, the Constitutional Court held unconstitutional the provision of the Law on Immovable Property Tax under which family members had been taxed jointly on all their immovable property, by applying the same value not subject to taxation as applied to the property of a single natural person who, under this law, was not deemed a family member.

[17] Draft Law No. XIIP-1788 Amending Article 84 of the Law on the Constitutional Court, registered on 8 May 2014.

[18] Draft Law No. XIIP-1815 Amending Article 19 of the Law on the Constitutional Court, registered on 13 May 2014.

[19] Draft Law No. XIIP-1815(3) Amending Articles 19, 53, and 56 of the Law on the Constitutional Court, registered on 20 April 2016.

[20] Draft Law No. XIIP-1134 Amending Article 19 of the Law on the Constitutional Court, registered on 25 October 2013.

[21] Draft Law No. XIIP-664(2) Amending Article 17 of the Law on the Constitutional Court, registered on 4 March 2014.

[22] Kazakevičius K. Konstitucinio Teismo laukia nedideli pokyčiai [Small changes are awaiting the Constitutional Court], 2 September 2015, <http://lzinios.lt/lzinios/Lietuva/konstitucinio-teismo-laukia-nedideli-pokyciai/208194>.