Kokias neteisines priemones Lietuvos Respublikos Konstitucinis Teismas naudoja savo argumentacijoje?

Abstract

This article defends the methodological position presented by H. Kelsen: that the Constitution is the supreme law, and is without gaps. Only such a position allows one to state that the Constitution is the law, i.e. an obligation, which is a criterion of constitutionality for the whole of the lower law, which, in comparison with the Constitution, is only a fact. Compared to the Constitution, the lower law, both national and international, including the provisions of European Union law, must be assessed as facts in the process of reasoning of the Constitutional Court; this duty of the Constitutional Court is related to the process of assessment of facts and not to the interpretation of binding law. European Union law is more important fact for the Constitutional Court in the reasoning process than other international law provisions and / or other national legal systems. This article also analyzes the problematic aspects of the jurisdiction of the Constitutional Court and administrative courts in deciding the legality of acts of an individual nature of the President of the Republic and the Government. It is proposed to adjust the statutory (ordinary) regulation so that acts (or parts thereof) adopted by the President of the Republic or the Government of an individual nature would be appealed directly to the Supreme Administrative Court of Lithuania, and the Constitutional Court, having substantially assessed the factual circumstances related to the adoption of these individual acts, would finally assess their legality.