The Effects of the Acts of the Constitutional Court
The binding nature of the acts of the Constitutional Court. The raison d’être of the Constitutional Court is to guarantee the supremacy of the Constitution in the legal system and ensure constitutional legality. This specific mission determines the legal effects of the acts of the Constitutional Court and their binding nature. Article 107 of the Constitution stipulates that the decisions of the Constitutional Court ascribed to its competence by the Constitution are final and not subject to appeal. This means that the rulings, conclusions, and decisions of the Constitutional Court by which a constitutional justice case is closed, i.e. the final acts of the Constitutional Court, are binding on all state institutions, courts, enterprises, establishments, and organisations, as well as on officials and citizens (erga omnes). The force of a ruling of the Constitutional Court recognising a legal act unconstitutional may not be overcome by repeated enactment of an equivalent legal act.[1]
It should be noted that the final acts of the Constitutional Court are also binding on the Constitutional Court itself: the Constitutional Court may not review them if there are no constitutional grounds for doing so.[2] The Constitutional Court has the obligation to ensure the continuity of constitutional jurisprudence, i.e. namely, that it would be consistent and non-contradictory and that its decisions would be predictable and foreseeable based on the existing official constitutional doctrine and precedents.[3] Therefore, it has been held in the acts of the Constitutional Court on more than one occasion that the Constitutional Court is bound by the precedents formulated by the Court itself and by the official constitutional doctrine substantiating those precedents.[4]
Nevertheless, in certain exceptional cases, it is permissible that the Constitution be reinterpreted in order to correct the official constitutional doctrine. At the same time, it should be emphasised that, although the reinterpretation of the official constitutional doctrine is a prerogative of the Constitutional Court, this option is perceived to be an exception, which can be justified only in cases where it is objectively inevitable.
In its rulings the Constitutional Court established certain criteria, against which the necessity of the reinterpretation of the official constitutional doctrine should be assessed. These criteria were consolidated in order to avoid arbitrariness and ensure the coherent development of the constitutional doctrine.
Thus, the general requirement is established that corrections of the official constitutional doctrine are justified exceptionally in those cases where they are objectively necessary, constitutionally justifiable, and well-reasoned. No change of the precedents established by the Constitutional Court or correction of the official constitutional doctrine may be determined by accidental (from the perspective of law) factors, such as, for example, a mere change in the composition of the Constitutional Court;[5] taking into account that the Constitutional Court may not interpret its final acts based on the arguments of political expediency, documents of political parties or different public organisations, opinions of and assessments by politicians, political science or sociological research or results of public opinion polls,[6] it is evident that such factors also cannot constitute the basis for the correction of the official constitutional doctrine. Otherwise, there might arise a threat to the stability of the official constitutional doctrine and the Constitution itself.
As established in the jurisprudence of the Constitutional Court, the necessity to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected may be determined only by the following circumstances:
1) there is the necessity to enhance the possibilities for implementing the natural and acquired rights of persons and their legitimate interests;
2) there is the necessity to improve the protection of the values enshrined in the Constitution;
3) there is the need to create better conditions for reaching the aims of the Lithuanian Nation that are declared in the Constitution and on which the Constitution itself is based;
4) there is the necessity to expand the possibilities of constitutional control in the state in order to guarantee constitutional justice and ensure that no legal act (or its part) that is in conflict with higher-ranking legal acts would have the immunity from being removed from the legal system.
The Constitutional Court also held that the correction of the official constitutional doctrine is impermissible if it:
1) changes the system of values entrenched in the Constitution;
2) denies the concept of the Constitution as an integral act and a harmonious system;
3) reduces the guarantees of the protection of the supremacy of the Constitution in the legal system;
4) reduces the guarantees of the rights and freedoms of a person consolidated in the Constitution;
5) changes the model of the separation of powers enshrined in the Constitution.
Thus, it is clear that the continuity of the constitutional doctrine and its consistent development is the main rule for the evolution of the jurisprudence of the Constitutional Court.
The legal effects of the acts of the Constitutional Court with regard to time. Traditionally the legal effects of the acts of the Constitutional Court with regard to time are divided into ex nunc (“from now on”), ex tunc (“from the outset”) and pro futuro (“in the future time”). Under the Constitution, a legal act that has been ruled by the Constitutional Court to be in conflict with the Constitution (or another higher-ranking legal act) may not be applied from the day of the official publication of the ruling of the Constitutional Court (Article 107). This means that the rulings of the Constitutional Court have the prospective (ex nunc) effect,[7] i.e. from the day of the official publication of a ruling of the Constitutional Court, a legal act ruled in conflict with the Constitution or with any other legal act is permanently removed from the Lithuanian legal system and may never be applied again.[8]
The Law on the Constitutional Court provides that all state institutions and their officials must revoke their substatutory acts or provisions that are based on an act ruled unconstitutional. The decisions that are based on legal acts ruled in conflict with the Constitution (or with other higher-ranking legal acts) must not be executed if they had not been executed prior to the entry into force of the relevant ruling of the Constitutional Court (Article 72).
However, the general rule regarding the ex nunc effect of the rulings of the Constitutional Court is not absolute, i.e. the provisions of the Constitution also give rise to the possibility of their retroactive effect (ex tunc), even if such possibility is not established explicitly.
In this respect, the decision of the Constitutional Court of 19 December 2012 is of particular importance, as it contains the most comprehensively developed official constitutional doctrine regarding the ex tunc effect of the acts of the Constitutional Court. Drawing on the overall constitutional legal regulation (the provisions of the Constitution on the powers of the Constitutional Court to decide on the constitutionality of legal acts, the finality of the acts of the Constitutional Court,[9] as well as the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law), the Constitutional Court held that, although the power of the rulings of the Constitutional Court is prospective according to the general rule, exceptions to this rule may be constitutionally justified. That is, in certain cases, the rulings of the Constitutional Court may have the retroactive effect, entailing the unconstitutionality of the consequences of the application of an unconstitutional legal act. The Constitutional Court has identified three situations justifying the retroactive effect of its rulings.
The first exception is directly related to the necessity to safeguard the fundamental constitutional values of the State of Lithuania—its independence, democracy, and the republic, or the innate nature of human rights and freedoms. Thus, where the Constitutional Court finds that a challenged legal act is not only in conflict with the Constitution but also denies those fundamental constitutional values, it also has the competence to declare as unconstitutional the consequences of the application of this legal act (its part).
Another possibility of the retroactive effect results from the finality of the decisions adopted by the Constitutional Court. According to Article 107 (Paragraph 2) of the Constitution, “The decisions of the Constitutional Court on the issues within its competence according to the Constitution shall be final and not subject to appeal”. The Constitutional Court has consistently held that the power of its decisions may not be overruled by repeatedly adopting an analogous legal act. The constitutional prohibition on overruling the power of a final act of the Constitutional Court is one of the means to ensure the supremacy of the Constitution and the rule of law. Therefore, if, in disregard of the said prohibition, an analogous legal act were adopted, such an act could not constitute a legal basis for acquiring any legitimate expectations, rights, or legal status. Thus, after finding that a legal act was adopted in violation of the prohibition on overruling the final decisions of the Constitutional Court, the Constitutional Court may also declare the unconstitutionality of the consequences of the application of such a legal act, even if those consequences had appeared before the decision was adopted.
The third exception to the general rule of the ex nunc effect of the acts of the Constitutional Court is related to Article 110 of the Constitution, which provides that a judge may not apply a law that is in conflict with the Constitution, and consolidates the constitutional duty of a court investigating a case to suspend the consideration of the case in the event of doubt regarding the constitutionality of the law or other legal act applicable in a concrete case and apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution. Thus, if after considering the case subsequent to the application of a court of general competence or an administrative court, the Constitutional Court declares the contested legal act in conflict with the Constitution (or a law), then following the entry into force of the ruling of the Constitutional Court, the applying court, upon reopening the consideration of the suspended case and making a decision, may not apply the legal act ruled unconstitutional. In this respect, the rulings of the Constitutional Court are effective retroactively, since a new legal situation created by the Constitutional Court applies to the previously established legal relations.
Postponing the official publication of the Constitutional Court’s rulings. As mentioned, according to the Constitution, a law (or its part) may not be applied from the day of the official publication of the decision of the Constitutional Court declaring the legal act in question unconstitutional. Thus, as noted by the Constitutional Court, after a ruling of the Constitutional Court whereby a particular law is ruled to be in conflict with the Constitution comes into force, there might emerge various indeterminacies in the legal system, i.e. lacunae legis—gaps in the legal regulation, or even a vacuum. In order to avoid this, the legal regulation must be corrected in timely manner to prevent the legal gaps or other indeterminacies.[10]
In response to this need, since 2002, the Constitutional Court has elaborated the official constitutional doctrine concerning the postponement of the official publication of its rulings. The essence of this doctrine, leading to pro futuro effect of the Constitutional Court’s rulings, comprises the idea that the Constitutional Court may postpone the official publishing of its ruling if it is necessary to give the legislature time to remove the legal gaps that would occur if the relevant ruling of the Constitutional Court were officially published immediately after it had been publicly pronounced at the hearing of the Constitutional Court and that would constitute the preconditions for denying certain values protected by the Constitution.
For example, in 2016, the Constitutional Court postponed the official publication in the Register of Legal Acts its ruling of 15 March 2016 concerning the maximum amount of maternity allowances. Having taken account of the fact that the implementation of this ruling was linked with the planning of public finances, as well as of the fact that it was necessary to appropriately prepare for granting and paying maternity allowances that would correspond to the amount of the average remuneration, the Constitutional Court postponed the official publication of the said ruling in the Register of Legal Acts until 2 January 2017.
In 2015, the Constitutional Court postponed the official publication in the Register of Legal Acts of two rulings:
- the official publication of the ruling of 11 June 2015 concerning the transfer of personal income tax to municipal budgets was postponed until 2 January 2016 (the Constitutional Court found that, if the ruling in this case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, this would lead to uncertainty in the legal regulation governing the funding of municipalities and, consequently, the allocation of funds to municipalities could be substantially disturbed);
- the official publication of the ruling of 29 September 2015 concerning the legal regulation governing the work pay of educators and other employees of budgetary establishments was postponed until 2 January 2017 (the Constitutional Court found that otherwise there would emerge uncertainty in the legal regulation of the work pay of the employees of budgetary establishments and organisations, due to which the payment for the said employees could be substantially disturbed; the Constitutional Court also took into account the fact that the adoption of the necessary legislative decisions was related to the planning of the state budget and that, under the Constitution, the legislature must in certain cases provide for a sufficient vacatio legis,e. a period of time from the official publication of a law until its entry into force within which the persons concerned might be able to prepare for the future changes).
The implementation of the acts of the Constitutional Court. After the Constitutional Court declares a certain legal act (part thereof) in conflict with the Constitution, the constitutional duty stems for a law-making subject that has adopted this legal act (the Seimas, the President of the Republic, or the Government) to recognise that this legal act (or its part) is no longer valid or, if the social relations in question require a legal regulation, to adopt a legal act establishing a new legal regulation in line with the Constitution.
The duty to adopt a new legal regulation is especially relevant where, after the entry into force of the ruling of the Constitutional Court by which a legal act has been ruled in conflict with the Constitution, the legal system is exposed to certain uncertainties, legal gaps, or even a vacuum within the legal regulation concerned. Then it is necessary to rectify the legal regulation in such a way that legal gaps and other uncertainties would be removed and the said legal regulation would become clear and consistent. It should also be noted that the rulings of the Constitutional Court that deal with issues related to ensuring human rights and freedoms should be implemented as soon as possible.
Thus, when implementing the rulings of the Constitutional Court by which certain legal acts have been ruled in conflict with the Constitution, the law-making subjects must:
1) repeal those legal acts (the so-called negative duty), or
2) adopt a legal act (legal acts) establishing a new legal regulation (the so-called positive duty).
In both cases, the legal act in question may not be applied under any circumstances until the moment of fulfilling this constitutional duty, since the legal force of the said act is repealed. As held by the Constitutional Court, when adopting new laws or other legal acts, as well as when amending the existing ones, all law-making subjects are bound by the official interpretation of the provisions of the Constitution and other legal arguments. In cases where a law-making subject does not carry out its constitutional duty, i.e. fails to pass a legal act by means of which a new legal regulation compatible with the Constitution would be established instead of the one ruled in conflict with the Constitution, the legal gaps may be filled ad hoc by courts when they are deciding on individual cases and applying (as well as interpreting) law within their competence.
Currently (as of 1 September 2016), only 11 out of 172 rulings of the Constitutional Court the implementation of which requires the law-making subjects to take positive legislative action are not implemented (these numbers do not encompass three very recent rulings of the Constitutional Court, as the time-limits prescribed in the Statute of the Seimas for the implementation of the rulings of the Constitutional Court have not expired yet). Thus, it can be maintained that the efficient implementation of the rulings of the Constitutional Court testifies to the authority of constitutional review performed by the Constitutional Court.
[1] The Constitutional Court’s rulings, inter alia, of 30 May 2003, 25 October 2006, and 25 October 2011.
[2] The Constitutional Court’s ruling of 28 March 2006.
[3] The Constitutional Court’s rulings, inter alia, of 28 March 2006 and 22 December 2014.
[4] The Constitutional Court’s rulings, inter alia, of 28 March 2006 and 5 September 2012.
[5] Ibidem.
[6] The Constitutional Court‘s decision of 13 March 2013.
[7] The Constitutional Court’s ruling of 30 May 2003.
[8] The Constitutional Court’s rulings, inter alia, of 30 May 2003, 25 October 2006, and 25 October 2011.
[9] Under Paragraph 1 of Article 102, the Constitutional Court decides whether the laws and other acts of the Seimas are in conflict with the Constitution, and whether the acts of the President of the Republic and the Government are in conflict with the Constitution or laws.
Under Paragraph 2 of Article 107, the decisions of the Constitutional Court on the issues assigned to its competence by the Constitution are final and not subject to appeal.
[10] The Constitutional Court‘s rulings inter alia of 19 January 2005, 6 February 2012.
