Home   |  Media   |  Publications | THE MAIN TASK OF A LAWYER IS NOT TO BE NEUTRAL An interview given by Dainius Žalimas, President of the Constitutional Court of the Republic of Lithuania, to Dace Šulmane, an editor of legal literature at the magazine Jurista vārds
09.02
2018

THE MAIN TASK OF A LAWYER IS NOT TO BE NEUTRAL An interview given by Dainius Žalimas, President of the Constitutional Court of the Republic of Lithuania, to Dace Šulmane, an editor of legal literature at the magazine Jurista vārds

   
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For a number of years, the Constitutional Courts of Latvia and Lithuania have been organising bilateral conferences and visits on a regular basis through which they share their experience and become acquainted with the latest case law in the neighbouring country. This summer, the justices of the Constitutional Court of the Republic of Lithuania visited Latvia. During his interview at the editorial office of the magazine Jurista vārds, Prof. Dr. Dainius Žalimas, President of the Constitutional Court, has reviewed some of the most relevant issues of constitutional law in Lithuania.

The friendship between the Constitutional Courts of Lithuania and Latvia has been going on for many years, and visits to each other are organised regularly. How do you assess the real benefits of this friendship to the practice of your Court? In addition, what are the benefits of cooperation with non-European countries (such as Kazakhstan, Georgia)?

I am very pleased to note that one of our closest partners is the Constitutional Court of the Republic of Latvia. We also try to maintain the same close ties with our Polish colleagues. This cooperation is very important. First of all, we are neighbours, we have a common history, and we face the same challenges. It is interesting to know what decisions the neighbouring country is taking. At the annual conferences of the Constitutional Courts of Lithuania and Latvia, we also select a topic of common interest. The topic chosen this year was related to criteria for assessing the quality of laws in rulings of the constitutional court.

Such discussions taking place every year are significant, and I can also say that our Court has made use of the decisions of the Constitutional Court of the Republic of Latvia. For example, in the ruling of our Court on correspondence between convicts. We have actually used the experience of Latvia and made similar conclusions. Sooner or later, neighbouring countries face similar challenges. Before we pass a ruling in our Court, we take a separate look at the experience of the European constitutional courts on the issue under consideration. For example, we drew on the experience of our Estonian colleagues when deciding the question of judges' pensions.

Last year, in one of our decisions, we recognised that courts are among the institutions exercising state power and that they can, within the scope of their competence, contribute to the fulfilment of the goals of the foreign policy pursued by the state.

The Lithuanian Constitutional Court, together with its colleagues from Georgia, Ukraine, and Moldova, has established the Association of Constitutional Justice of the Countries of the Baltic and Black Sea Regions (BBCJ), and Lithuania is thus cooperating with countries that are preparing to join the European Union sooner or later. At present, these countries are experiencing difficulties that we experienced 10-15 years ago. In my opinion, the most successful cooperation has been established with the Constitutional Court of the Republic of Moldova, which has gained considerable jurisprudential experience from us, for example, has similarly interpreted the concept of geopolitical orientation, according to which the European identity is a constituent element of the identity of the state and the Constitution must be interpreted in the light of the aspirations of membership in the European Union. In addition, in May of this year, the Constitutional Court of Moldova adopted a decision that clarifies the constitutional concept of the neutrality of the state, for example, the fact that neutrality cannot legitimise the illegal deployment of Russian military bases and forces, or prevent a partnership with the European Union and NATO. Stating this, the Moldovan colleagues have also taken into account our experience. However, I must stress that we ourselves also take over something from Moldova, for example, the issue of eternal constitutional clauses (unamendable principles of the independence of the state and democracy), which is rare in case law, but is widely discussed in the theory of law.

However, we do not want to have anything to do with states that are not democratic and in which the judiciary cannot be called legitimate, because it is not independent. If we talk about Russia and Belarus, then we do not see the point in cooperating with the courts that are not considered independent.

Comparatively recently, discussions (regarding proposed draft laws) on the powers of the Constitutional Court were held in Lithuania. Tell us if these proposals should be taken seriously?

In my opinion, in other countries almost nothing has been heard about them, as they were presented by individual politicians and they did not receive firm support. In this case, it is possible to speak of populism similar to one found in some countries, but in Lithuania such amendments either did not receive any support or legislation of completely different content was adopted. Of course, these proposals were made to somehow influence the authority of the Constitutional Court or even paralyse its work. In Lithuania, politicians who want to copy populism of other countries are not influential.

However, there are other news: the parliament plans to support the validation of the individual complaint to the Constitutional Court (with amendments to the Constitution). Albeit with delay, Lithuania has resolved to implement this model as from 2019. In general, we examine 20-24 cases on average per year in the Court, and about one third of the requests submitted by the courts we reject as inadmissible. For example, we do not examine such requests that cite only a certain constitutional doctrine formulated in our rulings, but do not refer to the constitutional doctrine that could be detrimental to the petitioner and that could answer the raised question. I want to emphasise that refusal to accept a petition serves as a certain guideline for the future, as it eliminates the uncertainties regarding the constitutionality of a legal regulation or the constitutional doctrine. Parliamentarians are also unevenly active in raising cases before our Court. Vytenis Andriukaitis, a politician of Lithuania, who is currently working in the European Commission, often initiated cases before the Constitutional Court. After he had become a member of the European Commission, the number of requests filed by politicians with the Constitutional Court decreased significantly.

What is your opinion about the powers of the Constitutional Court to make decisions related to economic issues of the state? How would you describe the threshold by which the Court can decide on the economy, and when should one say: is it a political decision?

We simply need to distinguish between what falls within the jurisdiction of the Court (legal issue) and what should belong to the legislature. We need to apply the proportionality test, as we did when evaluating the austerity measures introduced during the economic crisis.

In some rulings, we declared that the Constitution was breached, because the principle of proportionality had not been properly applied. For example, the reduction in the amounts of remuneration for state servants, judges, and other officials was different. Not just different, but different in essence. For example, the salary of the justices of the Constitutional Court decreased by 40 per cent, that of politicians diminished by 20 per cent, and the decrease of the salaries of state servants was 8-39 per cent. Proportionality does not mean socialist wage-levelling where the same salary is paid regardless of the responsibility and qualifications of individuals. Therefore, it was possible to explain the amount of such a reduction in no other way but as a possible attempt to interfere with the work of the Constitutional Court. Of course, the Court does not deal exclusively with economic policy issues, which depend solely on the state-chosen economic model. For example, I have said more than once that the Court does not intervene in matters relating to the planning of public expenditure, despite the fact that such economic choices could prove to be wrong in the long run. However, politicians sometimes find it difficult to understand that no law can have immunity from constitutional control.

What do you think of fiscal discipline as a legal rather than an economic principle?

I believe that the principle, which is found in every constitution, that the state recognises social welfare is inseparable from the concept of fiscal discipline. Failure to comply with fiscal discipline can lead to a situation into which Latvia and Lithuania got themselves some time ago: they slipped into one of the world's largest GDP deficits. For example, we have taken a decision on the postponement of compensation for reduced salaries and pensions for a certain period of time. We acknowledged that, due to fiscal discipline, postponing for a certain period the payment of compensation is justified.

Could you say a few words about the debate on the establishment of the institution of lay judges in Lithuania?

The debate is not over yet and, in my opinion, there is no chance for it to end. In order for such an institution to emerge, the Constitution should be amended. Because, at present, only professional judges can decide in court. Frankly speaking, this idea is quite strongly supported by the public, and I think this is because of the lack of confidence in the judiciary. No one can find a way how to establish this institution. I myself look at this idea sceptically, since in part it would be the renewal of Soviet practice where lay judges theoretically existed, but their work was formal. It is very difficult to create a practical model, because there are a lot of difficult questions to solve. For example, as regards the selection of lay judges: being a lay judge is a right or a duty? How to train lay judges? How to compensate them for their working time? How can we ensure the independence of lay judges?

Tell us about the most important recent rulings of your Court.

There were a few rulings in which we examined an interesting question - the constitutionality of amendments to the Constitution. As regards this, we adopted two rulings on 24 January 2014 and 11 July 2014. Concerning the constitutionality of amendments to the Constitution, there are numerous controversial opinions in the scientific legal doctrine. However, the court differs from the doctrine in that it ultimately has to make a final decision. Our Court was guided by the so-called maximalist viewpoint of ensuring constitutionality, according to which the principles that make up the foundations of the Constitution should also be respected when amending it. Therefore, it is first necessary to follow a certain procedure, but there are also material restrictions: these are the values enshrined in the Constitution, which cannot be changed or violated even by amendments to the Constitution. It is also not possible to change one article of the Constitution by denying the essence of another article. We have highlighted two groups of constitutional values: the first one is unamendable constitutional values (for example, the independence of the state, democracy, as well as the innate nature of human rights, due to which the re-introduction of the death penalty is impossible), and the second is de facto or practically unamendable constitutional values ​​(for example, the Western geopolitical orientation of the state, the republican form of government).

Dr. Stasys Stačiokas has emphasised in his article the importance of judicial communication, in particular, the fact that courts cannot be silent. What is your assessment of judicial communication in Lithuania?

First of all, judges are part of society. By complying with all requirements of professional ethics and independence, judges must communicate with the rest of society. Over the last few years, we have improved something in our Court and this helps us to be open to the public. When I began to act as the President of the Court, I came across something called self-isolation. Therefore, we followed the example of the constitutional courts of foreign countries and introduced communication tools, which are not envisaged by law. For example, the law does not say anything about the Court's annual reports, but from 2014 onwards, we began to publish such reports. Another innovation is the online broadcast of court hearings. Other courts did not dare to do this without the approval of the legislature. We opened our doors to a wide range of legal events, such as moot courts organised by universities or events in which human rights defenders and lawyers from the Eastern Partnership countries participate.

Do you see differences in court criticism in so-called "old democracies" and in Eastern European countries?

Yes, I see differences. For example, in Eastern Europe, criticism is often accompanied by attempts to paralyse the work of the constitutional court. The disappointment of politicians in some constitutional courts is also much easier to see in Central and Eastern Europe. If we are talking about court criticism in Lithuania and Latvia, many similar statements can be heard: purportedly, they are too active and, allegedly, grab too much power. Most often, such accusations result from the fact that the constitutional court without compromise guarantees the supremacy of the constitution. But, of course, criticism is often related to a particular case that the court has to deal with.

Lithuania is distinguished from our countries by numerous impeachment proceedings. Tell us more about the result of the case of Rolandas Paksas and other impeachment cases.

I think this is a specific feature of Lithuania, because in Europe and around the world impeachment is a very rare procedure. I do not know if we should be proud of it, but we are impeachment champions. We currently have two new impeachment cases. One of them is related to Seimas member Kęstutis Pūkas and his alleged sexual conduct, which may be incompatible with the oath and ethics of a member of the Seimas. Another case is related to the influence of Russian businessmen on a certain member of the Seimas. Concerning the case of Rolandas Paksas, there is currently a collision between the jurisprudence of the Constitutional Court and the European Convention on Human Rights. But can you imagine in any Western European country any person who, having been removed from office by impeachment, would subsequently try to return to the same office? If we are talking about political culture, I think this would be impossible. Then, as a consequence of this, certain impeachment cases would not take place. However, in Lithuania, the Court had to explain that a person who has breached the oath may not hold a position where it is required that, before taking it, he must swear an oath. The European Court of Human Rights, for its part, has stated that such a limitation for life is disproportionate. In order to implement such a decision, we need to change the Constitution and indicate a specific time limit (for example, from 5 to 10 years) preventing a person removed from office by impeachment from taking office that is linked with an oath, as provided for in the Constitution. Politicians have not been able to agree on these amendments several times.

Currently, until the Constitution has been amended, Rolandas Paksas may not actually stand for the office of a member of parliament or for the office of the President.

The essence of the case of Neringa Venckienė is that criminal proceedings were instituted against her, but she decided to flee the country and hide abroad (it is known that Neringa Venckienė lives in the USA). The question arose as to whether hiding and non-fulfilment of the duties of a member of the Seimas were compatible with the oath of a member of the Seimas? In Lithuania, only the parliament can initiate impeachment proceedings, while the legal conclusion on impeachment is given by the Constitutional Court. The examination of the case before our Court was also peculiar: despite the fact that Neringa Venckienė was publicly informed about the hearings of her case, she did not appear in them. The basis for the conclusion of the Constitutional Court was the logic that also works in labour law: if you do not go to work, the decision, I think, is clear.

In your recent speech, you have said the following words: "A judge must be well prepared in terms of substantive knowledge and must be characterised by fairness, independence, courage, sensitivity and - a quality which is often forgotten - humility." How do you understand that humility?

I would like to clarify that, at that time, I was quoting Habil. Dr. Andrzej Rzepliński, former President of the Constitutional Tribunal of the Republic of Poland. He said these words in his festive speech in Strasbourg in 2016. I totally agree with him, because I believe that every judge who holds this highest position must not forget that he is a member of society. He is a human being. Unfortunately, in our countries we see that the prevailing behavioural pattern resembles the building of a fence "between me and society". Because, in his work, the judge not only blindly applies the law, but also affects the lives of people. For example, the Russian Constitutional Court made a decision overnight and legitimised the annexation of Crimea. They had forgotten that they were people deciding the fate of other people. There are now 10 000 dead, several tens of thousands of injured, as well as a million refugees. This happens when you forget or ignore the fact that your decision is not exclusively theoretical.

Sometimes, unfortunately, we have to deal with the pride of judges, for example, their opinion on some kind of privileges that, purportedly, belong to them. For instance, there are judges who consider that official cars must be available for them or that judicial assistants should help them solve their personal matters. I understand humility as an ability to feel my responsibility, but at the same time to remain an equal member of society. There could only be privileges helping to ensure the independence of judges. Another commonly forgotten thing is not to be neutral when you see evil or violations. In my opinion, the main task of a lawyer is not to pretend to be neutral, but to condemn what is illegal.

My last question for you as an expert in international law is this: What is your assessment of the viability of international principles in today's world, in which some countries have totalitarian or authoritarian regimes that have the support of the public? Which principles are wrong? For example, do we have the right to say what other societies should do or condemn them for supporting, for instance, an authoritarian leader?

This question is also about whether or not to remain neutral. A lawyer cannot remain silent when he sees major violations of law, such as the annexation of Crimea or the occupation of parts of Georgia and Moldova. Military aggression is one of the most serious violations of international law. I think that, in such cases, it is impossible to remain silent, therefore, I have spoken about that not only as a specialist in international law, but also as the President of the Constitutional Court. Together with the Constitutional Courts of Ukraine, Georgia, Moldova, and some other countries, we have adopted a joint statement condemning the actions of the Russian Constitutional Court in perpetrating an international crime - the annexation of Crimea. We must react, because otherwise we cannot expect society to obey the law and respect justice if we say that this is nothing to do with me, so I am neutral. I think it is my duty to demonstrate to the Russian Constitutional Court that it does not deserve to be an equal member of the legal community. Court representatives are professional lawyers who know exactly what they do. Such conduct cannot be justified in any way. We should not seek a compromise with the aggressor, because we well remember the price of such a compromise.

The translation of this interview into Romanian may be accessed here.

 
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