Case No. 32/2000
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 48 OF THE
REPUBLIC OF LITHUANIA’S LAW ON THE ORGANISATION OF THE
NATIONAL DEFENCE SYSTEM AND MILITARY SERVICE WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
2 July 2002
Vilnius
The Constitutional Court of the Republic of Lithuania, composed of the Justices of the
Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius,
and Stasys Stačiokas
The court reporter—Daiva Pitrėnaitė
Romualdas Varslauskas, a senior consultant to the Legal Department of the Office of the
Seimas, acting as the representative of the party concerned, the Seimas of the Republic of Lithuania
The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of
the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court
of the Republic of Lithuania, on 20 June 2002, in its public hearing, considered case No. 32/2000
subsequent to the petition of the Higher Administrative Court, the petitioner, requesting an
investigation into whether the provision of Paragraph 2 of Article 48 of the Republic of Lithuania’s
Law on the Organisation of the National Defence System and Military Service that in cases of
dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract
with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may
be lodged with the court regarding the violation of only the dismissal procedure established by
means of legal acts, was in compliance with Paragraph 1 of Article 30 and Paragraph 1 of Article
109 of the Constitution of the Republic of Lithuania.
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The Constitutional Court
has established:
I
The Higher Administrative Court, the petitioner, was considering an administrative case.
The said court suspended the consideration of the case by its ruling and applied to the Constitutional
Court with a petition requesting an investigation into whether the provision of Paragraph 2 of
Article 48 of the Republic of Lithuania’s Law on the Organisation of the National Defence System
and Military Service (hereinafter also referred to as the Law) that in cases of dismissal from
professional or volunteer military service based on the provisions of Paragraph 1 of Article 38, or
Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract with the
professional soldier or that with the volunteer soldier had to be terminated, an appeal may be lodged
with the court regarding the violation of only the dismissal procedure established by means of legal
acts (wording of 7 July 1999; Official Gazette Valstybės žinios, 1999, No. 64-2069) was in
compliance with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.
II
The petition of the petitioner is based on the following arguments.
Paragraph 1 of Article 30 of the Constitution provides that any person whose constitutional
rights or freedoms are violated shall have the right to appeal to court, while Paragraph 1 of Article
109 of the Constitution prescribes that, in the Republic of Lithuania, the courts shall have the
exclusive right to administer justice. However, it is provided in Paragraph 2 of Article 48 of the
Law that in cases of dismissal from professional or volunteer military service based on the
provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law,
when the service contract with the professional soldier or that with the volunteer soldier had to be
terminated, an appeal may be lodged with the court regarding the violation of only the dismissal
procedure established by means of legal acts. In the opinion of the petitioner, thus, the right of
individuals established in Paragraph 1 of Article 30 of the Constitution to appeal to court is
restricted and the provision of Paragraph 1 of Article 109 of the Constitution that, in the Republic of
Lithuania, the courts shall have the exclusive right to administer justice is violated.
III
In the course of the preparation of the case for the judicial consideration, written
explanations were received from the representative of the party concerned, the Seimas, P.
Petkevičius, a senior consultant to the Legal Department of the Office of the Seimas.
The representative of the party concerned maintains that the provision of Paragraph 2 of
Article 48 of the Law that in cases of dismissal from professional or volunteer military service
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based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article
38 of this law, when the service contract with the professional soldier or that with the volunteer
soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only
the dismissal procedure established by means of legal acts is entrenched in the Law for the purpose
that the bases of dismissal of soldiers from service established in Paragraph 1 of Article 38, and
Items 10 and 12 of Paragraph 2 of Article 38 are very important, well-founded and may not be
disputed, as it is necessary to terminate the service contract with the soldier on the said bases. In the
opinion of P. Petkevičius, otherwise, the interests of military service might be impeded and
significant damage might be inflicted on the national defence system. According to the
representative of the party concerned, the court may decide only the dispute concerning whether
one followed the procedure of dismissal from the military service which is established by means of
legal acts, i.e. whether the question of dismissal from the military service was decided by competent
entities, whether in the course of its adoption one grounded one’s decision on necessary facts, data,
evidence and other corresponding material, whether the procedural actions were performed while
duly following all the requirements established by means of legal acts.
The representative of the party concerned maintains that the Law on the Organisation of the
National Defence System and Military Service provides for the right of an individual to lodge an
appeal with the court against the procedure of dismissal from military service and thus to defend his
rights, therefore, the said provision of Paragraph 2 of Article 48 of the Law is in compliance with
Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.
IV
In the course of the preparation of the case for the Constitutional Court hearing, written
explanations were received from L. Linkevičius, Minister of Defence of the Republic of Lithuania,
and R. Melnikienė, Vice-minister of Social Security and Labour.
V
At the Constitutional Court hearing, the representative of the party concerned R.
Varslauskas virtually reiterated the arguments set forth in the written explanations by the
representative of the party concerned P. Petkevičius.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 2 of Article 48 of the Law on the Organisation of the
National Defence System and Military Service with Paragraph 1 of Article 30 of the
Constitution.
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1. The petitioner requests the Constitutional Court to investigate whether the provision of
Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of
Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by means of legal acts was in compliance
with Paragraph 1 of Article 30 of the Constitution.
2. Paragraph 1 of Article 30 of the Constitution provides:
“Any person whose constitutional rights or freedoms are violated shall have the right to
appeal to court.”
The constitutional principle of judicial protection is established in Paragraph 1 of Article 30
of the Constitution. In its ruling of 18 April 1996, the Constitutional Court held that in a democratic
state the court is the main institutional guarantee of human rights and freedoms and that the
constitutional principle of judicial protection is universal.
It needs to be noted that, under the constitution, the legislature has a duty to establish such
legal regulation whereby all disputes regarding any violation of rights or freedoms of individuals
may be decided in court. An out-of-court dispute settlement procedure may also be provided for.
However, it is not permitted to establish any such legal regulation that would deny the right of an
individual who believes that his rights or freedoms have been violated to defend his rights and
freedoms in court.
In its 8 May 2000 ruling, the Constitutional Court held that a person is guaranteed the
protection of his violated right in court regardless of the legal status of this person and that the
violated rights and legitimate interests of persons must be protected in court irrespective of the fact
whether they are directly established in the Constitution or not.
3. The relations of the organisation of the national defence system and military service have
their own peculiarities. Taking account of these peculiarities, it is permitted to establish by law
various ways of resolving disputes regarding violation of the rights and freedoms, including an outof-court settlement procedure of such disputes. However, the peculiarities of the relations of the
organisation of the national defence system and military service may not deny the constitutional
right of persons to appeal to court to defend their rights and freedoms.
4. It has been mentioned that Paragraph 2 of Article 48 of the Law provides that in cases of
dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract
with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may
be lodged with the court regarding the violation of only the dismissal procedure established by
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means of legal acts. Such legal regulation means that in cases when the service contract with the
professional soldier or that with the volunteer soldier has to be or may be terminated and/or the
soldier is dismissed from service in the national defence system, the dismissed soldier may lodge an
appeal with the court regarding the violation of only the dismissal procedure established by means
of legal acts. Thus, under the impugned provision of Paragraph 2 of Article 48 of the Law, the
soldier is prohibited from appealing to court as regards the reasonableness of his dismissal from
military service. Thereby the constitutional right of the person to appeal to court is violated.
5. Taking account of the arguments set forth, it should be concluded that the provision of
Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of
Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by means of legal acts conflicts with
Paragraph 1 of Article 30 of the Constitution.
II
On the compliance of Paragraph 2 of Article 48 of the Law on the Organisation of the
National Defence System and Military Service with Paragraph 1 of Article 109 of the
Constitution.
1. The petitioner requests the Constitutional Court to investigate whether the provision of
Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of
Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by means of legal acts was in compliance
with Paragraph 1 of Article 109 of the Constitution.
2. Paragraph 1 of Article 109 of the Constitution provides:
“In the Republic of Lithuania, the courts shall have the exclusive right to administer justice.”
The Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6
of the Constitution). Paragraph 1 of Article 109 of the Constitution is inseparably linked with
Paragraph 1 of Article 30 of the Constitution in which the right of any person to appeal to court
concerning the protection of his violated rights is entrenched, with the principle of a state under the
rule of law enshrined in the Constitution, and with the innate right of individuals to justice. Under
Paragraph 1 of Article 109 of the Constitution, in the Republic of Lithuania, the courts shall have
the exclusive right to administer justice.
3. It has been held in this ruling of the Constitutional Court that the provision of Paragraph 2
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of Article 48 of the Law that in cases of dismissal from professional or volunteer military service
based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of Paragraph 2 of Article
38 of this law, when the service contract with the professional soldier or that with the volunteer
soldier had to be terminated, an appeal may be lodged with the court regarding the violation of only
the dismissal procedure established by means of legal acts conflicts with Paragraph 1 of Article 30
of the Constitution.
After it has been held that, by means of the impugned legal regulation established in
Paragraph 2 of Article 48 of the Law, the constitutional right of persons to appeal to court is
violated, it must be held, alongside, that the right of persons to justice is infringed, the opportunities
of courts to administer justice have become limited, thus, Paragraph 1 of Article 109 of the
Constitution and the constitutional principle of a state under the rule of law are violated.
4. Taking account of the arguments set forth, it should be concluded that the provision of
Paragraph 2 of Article 48 of the Law that in cases of dismissal from professional or volunteer
military service based on the provisions of Paragraph 1 of Article 38, or Items 10 and 12 of
Paragraph 2 of Article 38 of this law, when the service contract with the professional soldier or that
with the volunteer soldier had to be terminated, an appeal may be lodged with the court regarding
the violation of only the dismissal procedure established by means of legal acts conflicts with
Paragraph 1 of Article 109 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, 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 the provision of Paragraph 2 of Article 48 of the Republic of Lithuania’s
Law on the Organisation of the National Defence System and Military Service that in cases of
dismissal from professional or volunteer military service based on the provisions of Paragraph 1 of
Article 38, or Items 10 and 12 of Paragraph 2 of Article 38 of this law, when the service contract
with the professional soldier or that with the volunteer soldier had to be terminated, an appeal may
be lodged with the court regarding the violation of only the dismissal procedure established by
means of legal acts conflicts with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the
Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of
law.
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This ruling of the Constitutional Court is final and not subject to appeal.
The ruling is pronounced in the name of the Republic of Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas