Volume 50, No.1 - Spring 2004
Editor of this issue: Tadas Klimas
ISSN 0024-5089
Copyright © 2004 LITUANUS Foundation, Inc.


Vytautas Magnus University

Kristina Pakalnytė is a graduate of Vytautas Magnus University School of Law and is presently an advocate's apprentice.

The Lithuanian Constitution provides for a separation of powers: the Seimas (Parliament), the president of the republic and the government, and the judiciary, exercise the powers of the State.1 The constitution, however, limits the scope of powers. It is stipulated in Paragraph 1 of Article 7 "[t]hat any law or other statute which contradicts the Constitution shall be invalid." The purpose of constitutional justice is to ensure the supremacy of the constitution in the legal system. "In some countries, this control is implemented by courts of general jurisdiction, in others by special bodies (constitutional courts), while in yet others, by structural subunits of parliaments."2 But a main separation is between the American-style constitutional review model and the Austrian or Kelsian model: between decentralized and centralized models. Chapter 8 of Lithuania's constitution, entitled "The Constitutional Court," determines the institutional form of constitutional review. The constitutional court is a new institution in the legal system of Lithuania. It was formed and began its activities in 1993. What are the underlying characteristics of the Lithuanian constitutional court?

Let us first take a look at its structural foundation. During the period of Lithuania's rebirth (ca.1986-1992) and the time when the Provisional Basic Law3 was in effect (March 11, 1990-October 25, 1992), there were important discussions about the creation of a constitution. These discussions gave birth to the constitutional court along with the constitution of the independent republic. At first, there were a lot of discussions: what type of constitutional control is suitable for Lithuania? What has to be done in order to make the constitution "live",4 instead of creating a toothless political idol? One scholar has commented, "[t]he difference among the academic theories was marked by attachment to either the tradition of civil law or of common law."5 But this explanation cannot be correct, since there are a lot of civil law countries with American-style constitutional review.6 So was the choice between an American or European model? Many countries in Europe wanted to implement successful American-style constitutional control, but it was not possible for all to do so. There are a lot of examples of a failure to do this (e.g.: France, Germany, and Italy). Louis Favoreu suggested some of the reasons for this: the law has a "sacred nature" to many European judges, and it is also identified as the province of the legislature in most European countries.7 He also suggests a look at the nature of European judges, who are career judges and, therefore, have a special relation with this "sacred" law. (In contrast, American judges are selected for the task and are not afraid to challenge statute law). Louis Favoreu mentions the lack of a unified system of courts as the third possible precondition for most European countries choosing a European model. He also mentions that in most European countries the third power, the presidency, does not exist. But Lithuania has the third power, and there has even been some suggestion that the constitutional court constitutes a fourth power. Juozas Žilys, for one, does not agree that the court has the features of a fourth power.8

As to the reason why Lithuania chose the Austrian model, it is quite possible to say - in the beginning was Kelsen.9 This means that the Lithuanian constitutional court is established according to the Austrian model in imitation of most other European nations. Perhaps this was done for the reasons identified by Louis Favoreu, or perhaps just because this was the easiest model to choose in the particular Lithuanian situation; there has been surprisingly little analysis of this question.

As a new institution in the legal system of Lithuania, the constitutional court had to win respect and gain confidence in its very first years. Therefore, the text of the constitution itself was put into service. Chapter 8 of the constitution enumerates the main principles of the court, describing its nature, status and competence. For example, article 104 states: "while in office, justices of the constitutional court shall be independent of any other State institution, person or organization, and shall follow only the Constitution of the Republic of Lithuania." The "letter" of the constitution's language in this regard is quite clear and unambiguous, and gives a framework for the court to function. There is also the Law on the Lithuanian Constitutional Court which establishes the tasks, powers, and work procedure of the court.10 The first article of this law states "The Constitutional Court-a Judicial Institution."11 Its organization, however, differs from that of other courts.12 It marks a good attempt to create a strong, independent, and well-organized institution, which in itself acts to win it respect.

Let us look at how the work of the constitutional court developed. Statistics on appeals, requests for review and inquiries received at the court show what changes are in progress.13 In 1993, the first year it sat, the constitutional court received 22 petitions and inquiries, composed of the 42 challenged legal acts, norms or provisions and 36 norms of the constitution and laws that, in the opinion of the petitioners, were violated by disputed legal acts. But, by November 2003 there were already 35 petitions and inquiries received, 82 challenged legal acts, norms or provisions involving 108 norms of the constitution and. laws which, in the opinion of the petitioners, were violated by disputed legal acts. In 2003, in general, a substantial increase was exhibited in all categories. What does this mean? The constitutional court does not exercise a priori constitutional control; however, it does decide the constitutionality of acts already in force. The constitutional court does not scrutinize a case unless a petition for review is made by subjects enumerated in the constitution.14 The growing number of petitions is evidence of a growing respect and confidence in this institution and to constitutionality itself, especially with the increase in petitions from the courts of general jurisdiction. This is an important indicator of the trend away from the "anticonstitutional" Soviet tradition where no one questioned if an act was constitutional, or not. The main problem then was the absence of higher law priority over the lower law. The higher law was understood through the more detailed law. This model, which is now in Lithuania's past, can still be seen in Belarus today. "The law does not operate. Everything is ruled by the decrees of a dictator and the protocols of the dictator's speeches."15

The phenomenon of "constitutionalization"16 is occurring, making the constitution more important and influential for all legal life. It is a litmus test for any democratic country: the constitution is the highest law in the hierarchy of democracy (with some exceptions as in England). But the legal system is very dynamic; there are a lot of new laws. Meanwhile, an unconstitutional law is no law according to Kelsen.17 Constitutional review separates the wheat from the chaff. The constitutional court helps to constitutionalize the young democracy of Lithuania. Article 107 of the constitution states:

A law (or part thereof) of the Republic of Lithuania or other act {or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the constitutional court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.18

In Lithuania, it is accepted that the decisions of the constitutional court have an overall application compared with the general courts' decisions in the civil law system, where each decision is designed for a particular case only. As a constitutional protector, the constitutional court defends fundamental rights and liberties, and verifies the functioning of the separation of powers. Consequently, it is quite important that the rulings of the court should be erga omnes (that is, should have general effect in all similar situations and not confined to the case at hand). It is, rather interesting to note however, that the constitution does not state that the rulings are erga omnes, but it is so understood and accepted. "Rulings passed by the constitutional court shall have the power of law and shall be binding to all State institutions, courts, all enterprises, establishments, and organizations as well as officials and citizens."19

Clearly, the constitutional court must protect the fundamental rights of the individual. Thus, it is not surprising that such cases have an important place in the jurisprudence of the court. As a justice of the constitutional court Egidijus Jarašiūnas has noted, most of the practice of the court concerns the proprietary rights described in article 23 of the constitution.20 (Constitutional principle, individual equality before the law, court and other institutions, and common grounds for the right to defense are often interpreted by the court as well). For example, the constitutional court ruling21 on the compliance of Article 23 (decisions of 21 December 1994, 21 December 2000, and 8 May 2001) of the Law on State Social Insurance Pensions with Articles 23, 48 and 52 of the constitution and the constitutional principle of a law-governed state, had a great response in Lithuanian society. The court found that Article 23 (as amended by law dated 21 December 2000) of the Law on State Social Insurance Pensions was unconstitutional and therefore invalid to the extent that it provided that pensioners who earned income while on pension would have their old age pensions reduced. The court found that the law in question was in conflict with Paragraph 1 of Article 48 of the Constitution, that every person may freely choose an occupation or business, and Article 52, as well as the constitutional principle of a law-governed state. Article 23 of the constitution provides: "[p]roperty shall be inviolable. The rights of ownership shall be protected by laws. Property may only be seized for the needs of society in accordance with the procedure established by law and shall be justly compensated for." Article 52 of the constitution provides: "[the] State shall guarantee the right of citizens to receive old age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, loss of a breadwinner, and other cases provided for in the laws." According to the constitutional court, the law disregarded the principles of the protection of legitimate expectation, of legal certainty and legal security and thus violated the constitutional principle of a law-governed state. Because of this, the constitutional court has controlled the implementation of these maxims on fundamental individual rights by its ruling of noncompliance. This case marked an important step toward stronger constitutionality.

On the other hand, a large portion of the constitution concerns institutional organization and accordingly, there are a lot of rulings of the constitutional court on these issues.22 This has, however, proven to be a very problematic area. For example, significant attention has been given to a 10 January 1998 constitutional court ruling, which concerned the powers of the seimas and the president of the republic in the formation of the government after the elections of the president.23 Part 4 of Article 92 of the constitution states "[the] Government shall return its powers to the President of the Republic after the Seimas elections or upon election of the President of the Republic," this may not be interpreted to mean that the newly elected President has the power to appoint a new prime minister or to change the government. According to the court, this means only that the president must check to see whether the seimas remains confident in the government and in its program. Consequently, many are of the opinion that the constitutional court overreached itself by creating a new constitutional rule, one which is not at all stipulated in the constitution or in other laws and seems particularly improbable in terms of original intent. After this ruling, a lot of academics, Aleksandras Shtromas, for example, asked: "what should be done if the ruling of the constitutional court is questionable?"24 The problem is that the constitution does not provide a control for the controller. On the other hand, this is the only exception to the rule.

Thus, the sources of constitutional law in Lithuania are taking on increasing importance. But how are the lengthy decisions to be understood? "One may draw the conclusion that the sources of constitutional law are the final rulings of the constitutional court by which a legal rule is recognized as conflicting with the constitution. Other acts of the constitutional court and the arguments and motives presented in them are valued as important sources to perceive the content of constitutional rules."25 At present, the constitutional court has more power to interpret the constitution than it did in the first few years of its functioning. It is increasingly the case that decisions are being made not only according to the letter of the constitution, but according to "the spirit of the constitution." Constitutional court Justice Egidijus Jarašiūnas has stated that most of the principles stated in the constitution, especially derivative principles, would have remained the object of academic discussion only, if not for the jurisprudence of the constitutional court.26

But there is another achievement beyond the persuasive effect of jurisprudence upon society and government: the decisions of the court very often result in changes to statutory laws and regulations. Vytautas Sinkevičius, a justice of the constitutional court, has coined a term "rational reaction" to describe this.27 As a result, the court influences legislation and the legal order in general. The magnitude of this achievement can be seen by comparison with some other constitutional courts in Eastern Europe, whose decisions have been far less influential.

The constitutional court not only determines whether international treaties are in conflict with the constitution,28 but also participates in international legal life. The constitutional court of the Republic of Lithuania was admitted to full membership in the Conference of the European Constitutional Courts in 1997. The usual condition of a three-year associate membership was not applied to the Lithuanian court, because its activity was highly valued. This membership helps to strengthen the protection of human rights and freedoms. Since rulings and decisions are translated into English, they can influence all European constitutional courts.

The Lithuanian court has had its share of critics. Valentinas Mikelėnas, a supreme court justice, criticizes a posteriori constitutional control. According to him this is a drawback, in that a priori review would be more effective in preventing the rise of unconstitutional laws.29 He especially noted that most Soviet laws were incorporated without judicial scrutiny.30 On the other hand, Egidijus Kurys, another supreme court justice, criticizes the elimination of the boundary between law and politics, especially when the concepts of political sciences are confused and the interpretation goes too far.31

In conclusion, while there is nothing in a parliamentary constitution that mandates a Kelsen-style court, this is the system prescribed in the Lithuanian constitution. During its initial ten-year period this institution has won respect and now carries significant authority. At first, its decisions kept closely to the letter of the law, but now range further. The court's decisions have far-reaching consequences for the Lithuanian legal system: not only do they have an erga omnes effect, but laws and regulations are changed to reflect them in a process of "rational reaction." The Lithuanian constitutional court is, beyond a doubt, one of the prime movers and guarantors of the rule of law and the protection of individual rights in Lithuania and, in large part, is additionally responsible for Lithuania's progress in these areas.

1. The Constitution of the Republic of Lithuania (October 25,1992), Art. 1, par. 5.
2. Juozas Žilys, Konstitucinis Teismas - teisinės ir istorinės prielaidos (Vilnius: Teisinės informacijos centras, 2001), 206.
3. The Provisional Basic Law was in effect the interim constitution.
4. The term is used a Ia Favoreu. See Louis Favoreu, "La constitutionnalizatio de l'ordre juridique. Considerations generates". Revue beige de droit contitutionnei 1999, No. 3, 238.
5. See footnote 3: Juozas Zilys, 205.
6. For instance, Estonia: Constitution of Estonia §15. "The courts...shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution."
7. Louis Henkin and Albert Rosenthal, eds., Constitutionalism and Rights. The Influence of the United States Constitution Abroad, Louis Favoreu, Constitutional Review in Europe (New York, Columbia University Press, 1990) 38-62.
8. See foot note 3: Juozas Zilys, 137.
9. Egidijus Jarasiunas, Valstybe's Valdzios Institucijif Santykiai ir Konstitucinis Teismas (Vilnius: Teisines Informacijos Centras, 2003), 38.
10.  Law on the Constitutional Court of the Republic of Lithuania (Feb.. 3, 1993, No. 1-67), Art. 2.
11. Ibid., Art 1.
12. Article 103 of the constitution: The Constitutional Court shall consist of nine justices, each appointed for a single nine-year term of office. Every three years, one-third of the Constitutional Court shall be reconstituted. The Seimas shall appoint candidates for justices of the Constitutional Court from the candidates, three each presented by the President of the Republic, the President of the Seimas, and the President of the Supreme Court, and appoint them as justices.
14. It is noteworthy to mention one interesting aspect. The constitution says: "The Constitution shall be an integral and directly applicable act." (Article 6) This could be interpreted that everyone has a right to petition the court directly {instead of having the case referred by a regular court) and the matter has not been tested. Private communication of Tadas Klimas to the author dated October 15, 2003.
15. Ruta Vainiene (Vice-President of the Lithuanian Free Market Institute) "Artimas tolimas socializmas", Lietuvos žinios (2003 02 17).
16. Constitutionalization can be understood as a process when the constitution becomes more powerful: all constitutional fundamental principles and imperatives influences both lawmaking and practice, jurisprudence as well. This is a significant step towards a "living" constitution.
17. Hans Kelsen, Pure Theory of Law, (The University of California Press, 1989); Lithuanian translation: Grynoji teisės teorija (Vilnius: Eugrimas, 2002) 224.
18. The Constitution of the Republic of Lithuania, Art. 107, Par. 10.
19. See fn. 10: Law on the Constitutional Court of the Republic of Lithuania, Art. 76.
20. Egidijus Jarašiūnas, "Konstitucija, Lietuvos Respublikos Konstitucinis Teismas ir Teisės konstitucionalizacija", Konstitucingumas ir pilietinė visuomenė (Vilnius: Lietuvos Teisės Univer-sitetas, 2003), 137.
21. Ruling of the Constitutional Court of the Republic of Lithuania: On State Social Insurance Pensions, 25 November 2002.
22. For example: rulings of the Constitutional Court of the Republic of Lithuania: On the Reorganization of ministries, 3 June 1999. On the Government of the Republic of Lithuania, 23 November 1999.
23. Ruling of the Constitutional Court of the Republic of Lithuania: On the Program of the Government of the Republic of Lithuania, 10 January 1998.
24. Živilė Ramoskaitė, "VI Santara-Šviesa Lietuvoje", Baltos lankos, Nr. 10. //, visited 03 11 2003.
25. See footnote 2: Juozas Žilys, po. 212.
26. See footnote 20: Egidijus Jarašiūnas, p. 140.
27. Vytautas Sinkevičius, "Konstitucinio Teismo nutarimų įtaka įstatymų leidybai", Konstitucinė justicija: dabartis ir ateitis (Vilnius, 1998) 210.
28. The 17 October 1995 constitutional court ruling is one of most noteworthy of the interpretation of the international treaties. The court upheld the constitutionality of Article 12 of the Law "On International Treaties of the Republic of Lithuania" that international treaties of the Republic of Lithuania which are ratified by Seimas "shall have the force of law".
29. Dalia Mikelėnienė, Valentinas Mikelėnas, Teismo procesas: teisės aiškinimo ir taikymo aspektai (Vilnius: Justicija, 1999), 146.
30. Ibid. "Unfortunately, there was never any one, who could take the initiative and responsibility to check the constitutionality of the laws that were in effect before the Constitution. <...> [now] most of cases decided by the Constitutional Court are on the laws which came into force after the Constitution was passed."
31.  Egidijus Kūrys, "Politiniuų klausimų jurisprudencija," Politologija (1998/1 (11)), 27-74.