Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Article 23, Paragraph 2 of
Article 38, Paragraph 5 of Article 41, Paragraph 5
of Article 152, Paragraph 4 of Article 155,
Paragraph 5 of Article 156, Article 180,
Paragraphs 4 and 11 of Article 208 and Paragraph 3
of Article 231 of the Statute of the Seimas of the
Republic of Lithuania with the Constitution of the
Republic of Lithuania
Vilnius, 25 January 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the petitioner-a group of members of
the Seimas of the Republic of Lithuania-Juozas Bernatonis, a
Seimas member,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Ona Buišienė, the chief consultant to
the Law Department of the Office of the Seimas,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
16 January 2001 in its public hearing conducted the
investigation of Case No. 3/99 subsequent to the petition
submitted to the Court by the petitioner-a group of members of
the Seimas of the Republic of Lithuania-requesting the Court to
investigate if provisions of Articles 23, 38, 41, 152, 155,
156, 180, 208, 231 and 259 of the Statute of the Seimas of the
Republic of Lithuania were in compliance with provisions of
Articles 1, 8, 59, 61, 62, 63, 67, 68, 74, 130 and 132 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
1. On 22 December 1998, the Seimas of the Republic of
Lithuania adopted the Statute of the Seimas "On the Amendment
of the Statute" (Official Gazette Valstybės žinios, 1999, No.
5-97).
The petitioner-a group of Seimas members-requests the
Constitutional Court to investigate whether provisions of
Articles 23, 38, 41, 152, 155, 156, 180, 208, 231 and 259 of
the Statute of the Seimas are in compliance with provisions of
Articles 1, 8, 59, 61, 62, 63, 67, 68, 74, 130 and 132 of the
Constitution of the Republic of Lithuania.
2. The request of the petitioner is based on these
arguments.
Paragraph 1 of Article 23 of the Statute of the Seimas
provides that after the Seimas has heard the report of the
Prosecutor General concerning the crime committed by a Seimas
member, it shall decide whether to form an investigatory
commission for the consent to bring the Seimas member to
criminal responsibility, or to initiate preliminary actions of
impeachment proceedings. In the opinion of the petitioner,
thereby the constitutional right and duty of Seimas members to
follow the Constitution, the interests of the state, and their
conscience are restricted, as well as the right of free
decision of the Seimas is limited as it becomes impossible not
to adopt any of the aforesaid decisions nor is it possible to
adopt both decisions for the same case. The petitioner also
maintains that Article 23 of the Statute of the Seimas is in
conflict with Articles 8 and 62 of the Constitution on the
grounds that after the Seimas gives its consent for bringing
the Seimas member to criminal responsibility, the said article
does not provide that the Seimas member may not be arrested in
the House of the Seimas.
Paragraph 2 of Article 38 of the Statute of the Seimas
provides that a parliamentary group shall consist of at least
seven Seimas members (earlier it was provided that a
parliamentary group shall consist of at least three Seimas
members). The petitioner is of the opinion that the increase of
the number of Seimas members who may form a parliamentary group
restricts opportunities for Seimas members to implement the
right of free mandate which is defined in Article 59 of the
Constitution. As shows the previous work practice of the
Seimas, the presence of small parliamentary groups did not
restrict the efficiency of the activities of the Seimas but
created conditions for Seimas members to better perform their
constitutional duties.
Article 41 of the Statute of the Seimas establishes
additional requirements for the opposition leader. In the
earlier in force Statute of the Seimas it was provided that one
of the heads of parliamentary groups forming an opposition
coalition might be elected leader of the opposition coalition.
In the opinion of the petitioner, Paragraph 5 of Article 41 of
the Statute of the new wording contains an additional
precondition: the opposition parliamentary group or their
coalition must have more than half of the Seimas members
belonging to the Seimas minority so that its head could be
referred to as the opposition leader. Thereby the right of the
opposition to elect its leader is abolished. Such amendments of
the Statute of the Seimas conflict with the principle of
natural formation and consolidation of the opposition, which
has become an established principle in traditional democracies,
as well as with provisions of Articles 1 and 59 of the
Constitution.
Paragraph 5 of Article 152 of the Statute of the Seimas
provides that in the course of the consideration of a draft at
Seimas sittings, the person presiding over the siting shall not
present draft amendments and supplements proposed by Seimas
members for consideration in case they are supported by less
than 10 members of the Seimas. In the opinion of the
petitioner, such a norm restricts the right of legislative
initiative of Seimas members which is established in Article 68
of the Constitution, and conflicts with the principle of free
mandate of a Seimas member (Article 59 of the Constitution).
This right of a Seimas member is restricted by provisions of
Paragraph 4 of Article 155 and Paragraph 5 of Article 156 of
the Statute of the Seimas of the new wording as well. Under the
said provisions, only those draft amendments proposed by a
Seimas member shall be put to the vote at the time of adoption
of a draft law which are supported by not less than 1/5 of the
Seimas members. Under the disputed provisions, the Seimas
members belonging to the Seimas majority are placed in an
advantageous situation as their number is twice as many as 1/5
of the Seimas members. Meanwhile, the proposals of small
parliamentary groups (including the opposition) in fact cannot
be implemented. Thereby the equality of Seimas members is
violated.
Paragraph 4 of Article 180 of the Statute of the Seimas
provides that the committees of the Seimas, parliamentary
groups or individual Seimas members may propose a draft law on
amendment of certain budgetary expenditures. However, Article
132 of the Constitution provides that the budget shall be
changed according to the same procedure by which it was
drafted, adopted and approved, while Article 130 of the
Constitution provides that the Government shall prepare a draft
budget of the State, and shall submit it to the Seimas.
According to the petitioner, granting of the right of
initiative to amend the state budget for Seimas committees,
parliamentary groups and Seimas members is not in line with the
provisions of Articles 130 and 132 of the Constitution.
Paragraph 4 of Article 208 of the Statute provides that
the person presiding over the Seimas sitting may cut short any
question posed by a Seimas member to a member of the Government
if, in the opinion of the person presiding over the sitting,
this question resembles either a statement of the Seimas member
or a declaration of his opinion. It is also provided in
Paragraph 11 of this article that decisions made by the person
presiding over the sitting during the Government hour shall be
indisputable. In the opinion of the petitioner, this creates
conditions for the person presiding over the sitting to
restrict the rights of Seimas members and it conflicts with
provisions of Articles 59, 61 and 67 of the Constitution.
It is provided in Paragraph 3 of Article 231 of the
Statute of the Seimas that after the Seimas has heard the
report of the Prosecutor General concerning the crime committed
by a Seimas member, it shall adopt one of the two decisions: to
form an investigatory commission for the consent to bring the
Seimas member to criminal responsibility, or to initiate
preliminary actions of the procedure for impeachment
proceedings. Preliminary actions of impeachment proceedings and
the procedure for impeachment proceedings may not be initiated
in the Seimas until the question of criminal responsibility has
not been decided. In the opinion of the petitioner, such a norm
conflicts with provisions of Articles 62 and 74 of the
Constitution.
Article 259 of the Statute of the Seimas provides that
upon receiving a copy of the effective judgement of conviction
from a court, the Seimas shall adopt a decision on removal of
the person from office of a Seimas member or on revocation of a
mandate of a Seimas member. Article 74 of the Constitution
provides that the mandate of a Seimas member is revoked in
accordance with the procedure for impeachment proceedings.
Article 63 of the Constitution contains an exhaustive list of
situations due to which the powers of a Seimas member cease,
however, it is not provided that his powers cease upon going
into effect of judgement of conviction in a criminal case. It
is also provided in the Statute of the Seimas that after the
beginning of impeachment proceedings is announced, during the
hearings of the proceedings the Seimas becomes an impeachment
institution in the hearings of which the impeached person takes
part. Meanwhile, Article 259 of the Statute of the Seimas
provides that a decision must be adopted on revocation of the
mandate of the Seimas member in a regular Seimas sitting in the
absence of the Seimas member whose mandate is revoked. Such a
decision is signed by the Chairman of the Seimas, while during
the impeachment proceedings it is signed by the person
presiding over the sitting (Chairman of the Supreme Court or
any other judge of this court, or Chairman of the
Constitutional Court or any other judge of this court).
Therefore, in the opinion of the petitioner, Article 259 of the
Statute of the Seimas is in conflict with provisions of Article
74 of the Constitution and the common norms of Part VIII
entitled "Impeachment Proceedings" of the Statute of the Seimas
which regulate the impeachment procedure.
II
1. In the course of the preparation of the case for the
Constitutional Court hearing, an explanation was received from
Dr. Assoc. Prof. T. Birmontienė, Head of the Constitutional Law
Department of the Public Administration Faculty, Law Academy of
Lithuania.
It is maintained in the explanation that the provisions of
Articles 23 and 231 of the Statute of the Seimas are in
conformity with Articles 62 and 74 of the Constitution as they
decide the issue of preliminary actions for impeachment
proceedings but not that of revocation of the mandate of a
Seimas member. The establishment of the concrete size of a
parliamentary group is within the competence of the Seimas and
is in compliance with Article 59 of the Constitution as it
prevents no person from joining another parliamentary group or
expression of his convictions in other manner. T. Birmontienė
noted that the establishment of the status of the opposition
leader is a discretionary right of the Seimas. One or another
regulation of this right in itself does not deny the democracy
principle, therefore Article 41 of the Statute of the Seimas is
in compliance with Articles 1 and 59 of the Constitution. The
norms of Paragraph 5 of Article 152, Paragraph 4 of Article 155
and Paragraph 5 of Article 156 of the Statute of the Seimas are
in conformity with Articles 68 and 59 of the Constitution as
the former regulate concrete procedures of legislation.
It is also maintained in the explanation that the
provisions of Article 208 of the Statute of the Seimas which
are disputed by the petitioner conflict with the Constitution
as they infringe the rights of a Seimas member, which are
entrenched in the Constitution.
2. In the course of the preparation of the case for the
Constitutional Court hearing, an explanation was received from
Dr. E. Šileikis, senior assistant at the Faculty of Law,
Vilnius University. It is maintained therein that the
independence of the Seimas is restricted by the competence of
the Seimas established in the Constitution and the duty to
observe the Constitution and effective laws.
E. Šileikis noted that the Constitution does not regulate
directly the procedure for formation of parliamentary groups,
therefore the Seimas, while establishing procedure for its
activities, may establish a minimal number of members of
parliamentary groups.
It is noted in the explanation that the Constitution does
not provide for the Seimas opposition directly, i.e., it does
not provide for the parliamentary opposition as a structure and
institute of the constitutional level. It is also pointed out
in the explanation that the disputed norms of Article 23,
Paragraph 2 of Article 38, Article 41, Paragraph 2 of Article
152, Paragraph 4 of Article 155, Paragraph 5 of Article 156,
Paragraph 4 of Article 180, Paragraph 4 of Article 208 and
Paragraph 3 of Article 231 of the Statute of the Seimas are in
compliance with the Constitution.
III
1. At the Constitutional Court hearing, the representative
of the petitioner J. Bernatonis reiterated the arguments set
down in the petition and presented additional arguments upon
which the alleged non-compliance of the disputed norms of the
Statute of the Seimas with the Constitution is based.
In the opinion of the representative of the petitioner,
the norms of Articles 23 and 231 of the Statute of the Seimas
evidently restrict the right of free decision of the Seimas,
because the Seimas may adopt only one of two possible
decisions, however, it is impossible for the Seimas not to
adopt any of these decisions. The representative of the
petitioner maintains that the other disputed norms of the
Statute of the Seimas are linked with restriction of the rights
of Seimas members which were in effect earlier. The restriction
of the rights of representatives of the People and extension of
the powers of the Chairman of the Seimas in the area of Seimas
procedures conflict with the Constitution. In the opinion of
the representative of the petitioner, the provision of Article
38 of the Statute of the Seimas that a parliamentary group
shall consist of at least seven Seimas members restricts the
rights of Seimas members. By the norm of Article 41 of the
Statute of the Seimas concerning the opposition leader, the
rights of parliamentary groups established in the Statute of
the Seimas are obviously violated. The norms of Articles 152,
155 and 156 of the Statute of the Seimas restricted the right
of Seimas members which had been in effect earlier to submit
proposals and amendments in the course of deliberation and
adoption of a draft. J. Bernatonis noted that the disputed
norms of Article 208 of the Statue of the Seimas grant
exceptional powers to the person presiding over the sitting,
which conflict with the norms and spirit of the Constitution
and the essence of democracy.
2. At the Constitutional Court hearing, the representative
of the party concerned O. Buišienė explained that Article 23 of
the Statute of the Seimas regulates issues of procedure for
revocation of personal inviolability of a Seimas member but not
those of revocation of the mandate of a Seimas member. The
mandate is revoked according to impeachment procedure. The
Constitution does not regulate decisions on possible
preliminary actions of the procedure for impeachment
proceedings, while the procedure of arrest of persons is
established in the Code of Criminal Procedure. Therefore the
norm regarding the arrest of the Seimas member in the House of
the Seimas is in compliance with the Constitution.
According to O. Buišienė, the norms of Articles 26 and 38
of the Statute of the Seimas establish the procedure of
formation of parliamentary groups. Seimas members join into
parliamentary groups of their own free will, while the Statute
of the Seimas, by establishing the minimal number of their
members, does not differentiate the rights of parliamentary
groups.
In the opinion of the representative of the party
concerned, the norms of the Constitution does not define the
status of the opposition leader, while the procedure of
election of Seimas authority is not applied to this official.
O. Buišienė maintains that in order to implement the
legislative initiative of Seimas members which is established
in Article 68 of the Constitution the phase of law-making is
necessary. During the phase of deliberation and adoption of a
draft law at the Seimas sittings, the Seimas members may submit
their amendments under procedure established in Paragraph 1 of
Article 152, Paragraph 4 of Article 155 and Paragraph 5 of
Article 156 of the Statute of the Seimas. The fact that Seimas
members propose amendments is not expression of the legislative
initiative but a mere issue of improvement of a draft law.
According to the representative of the party concerned,
Article 208 of the Constitution provides for the implementation
form of one of Seimas functions, i.e. the parliamentary control
over the Government, which is carried out at the Seimas sitting
during the Government hour when Seimas members pose oral
questions to members of the Government. This is not assessment
of the activity of members of the Government. Therefore, in
attempt to ensure proper work of the Seimas, the person
presiding over the sitting may cut short the question which is
similar either to a statement or a declaration of one's
opinion. In the opinion of the representative of the party
concerned, Article 208 of the Statute of the Seimas is in
compliance with the Constitution.
The Constitutional Court
holds that:
I
1. On 22 December 1998, the Seimas set forth the Statute
of the Seimas in a new wording by the Statute of the Seimas "On
the Amendment of the Statute".
The petitioner-a group of Seimas members-is of the opinion
that individual provisions of certain articles of the Statute
of the Seimas restrict the rights of Seimas members established
in the Constitution, therefore they conflict with the
Constitution. The petitioner requests the Constitutional Court
to investigate whether the disputed norms of Articles 23, 38,
41, 152, 155, 156, 180, 208, 231, and 259 of the Statute of the
Seimas are in compliance with the Constitution.
2. By its decision of 13 April 1999, the Constitutional
Court joined the petition of the petitioner-a group of Seimas
members-requesting investigation of the compliance of Article
259 of the Statute of the Seimas with the Constitution and the
Seimas petition of 16 March 1999 requesting investigation of
the compliance of Article 259 of the Statute of the Seimas with
the Constitution into one case. The Constitutional Court
investigated the case and on 11 May 1999 passed a ruling
wherein it recognised that Article 259 of the Statute of the
Seimas to the extent that the right of the convicted person to
take part in the impeachment proceedings as the impeached
subject and his right to defence are restricted contradicted
Article 74 of the Constitution. In the case at issue the
Constitutional Court will not investigate whether Article 259
of the Statute of the Seimas is in conformity with the
Constitution.
3. The petitioner-a group of Seimas members-requests the
Constitutional Court to investigate whether Paragraph 4 of
Article 180 of the Statute of the Seimas of 22 December 1998,
wherein it is established that the committees, parliamentary
groups and individual Seimas members, in accordance with the
conditions provided in Article 174 of Chapter 27 of the Statute
of the Seimas, may submit a draft law on amendment of certain
budgetary expenditures, is in compliance with the provisions of
Articles 130 and 132 of the Constitution which provide that the
Government shall prepare a draft budget of the state, and shall
submit it to the Seimas, and that the budget shall be changed
according to the same procedure by which it was drafted,
adopted and approved.
On 10 October 2000, by the Statute of the Seimas "On the
Amendment of Articles 24, 25, 27, 29, 30, 31, 32, 33, 35, 44,
48, 54, 55, 77, 79, 81, 83, 88, 89, 90, 93, 115, 119, 121, 126,
127, 130, 136, 138, 139, 155, 172, 180, 187, 188, 206, 209,
214, 219, 225 and Change of the Titles of Chapters 6 and 30 of
the Statute of the Seimas", the Seimas amended and supplemented
Article 180 of the Statute of the Seimas and set it down as
follows:
"1. The Seimas may amend the State Budget during the
budget year. It shall be changed according to the same
procedure by which it was drafted, adopted and approved. When
the State Budget is amended, it is permitted not to follow the
terms provided for in Paragraphs 1 and 4 of Article 172,
Paragraph 1 of Article 173, Paragraph 1 of Article 176,
Paragraphs 1 and 5 of Article 177 and Paragraph 1 of Article
179 of this Chapter.
2. When a draft amendment of the State Budget is being
deliberated in Seimas committees and parliamentary groups,
regular plenary sittings of the Seimas may be held.
3. If necessary, the Seimas may approve an additional
budget.
4. In case of need of finances which may not be allocated
from the Government Reserve Fund, the Government shall submit
to the Seimas a draft law on the amendment of the Law on the
State Budget. In the draft law, the purpose and size as well as
the source of the needed finances shall be indicated.
5. The Law on the Amendment of the Law on the State Budget
shall be adopted by a majority vote of the Seimas members
participating in the sitting in case the Government is not
against it.
6. Otherwise, the law shall be adopted by a majority vote
of all Seimas members."
Thus, the norm of Article 180 of the Statute of the Seimas
disputed by the petitioner wherein it was established that the
committees, parliamentary groups and individual Seimas members,
in accordance with the conditions provided in Article 174 of
Chapter 27 of the Statute of the Seimas, may submit a draft law
on amendment of certain budgetary expenditures became null and
void. The present wording of the Statute of the Seimas does not
contain any norm of the same content. Pursuant to Paragraph 4
of Article 69 of the Law on the Constitutional Court, the
annulment of a disputable legal act shall be grounds to adopt a
decision to dismiss the initiated legal proceedings.
4. The petitioner-a group of Seimas members-requests the
Constitutional Court to investigate whether Article 23 of the
Statute of the Seimas is in conformity with Articles 8 and 62
of the Constitution on the grounds that the said article does
not provide that, after the Seimas gives its consent for
bringing the Seimas member to criminal responsibility, the said
article does not provide that the Seimas member may not be
arrested in the House of the Seimas.
As it may be seen from the content of the petition, the
petitioner raises the question of the compliance of Article 23
of the Statute of the Seimas, motivating that it does not
contain the norm of Paragraph 4 of Article 24 of the wording of
the Statute of the Seimas which was in force earlier, and which
prohibited to arrest a Seimas member in the House of the Seimas
after the Seimas had given its consent for bringing the Seimas
member to criminal responsibility.
Thus, the petitioner disputes the fact that Article 23 of
the Statute of the Seimas does not provide for certain legal
regulation. Therefore, it needs to be held that in the case at
issue the matter of investigation concerning this request is
absent.
Under Article 102 of the Constitution and Paragraph 1 of
Article 63 of the Law on the Constitutional Court, the
Constitutional Court shall decide whether the laws and other
legal acts adopted by the Seimas are in conformity with the
Constitution and whether legal acts adopted by the President of
the Republic and the Government are in conformity with the
Constitution or laws.
Taking account of the arguments set forth and conforming
to Item 2 of Paragraph 1 and Paragraph 3 of Article 69 of the
Law on the Constitutional Court, the case is to be dismissed as
regards the said issue.
5. Under Item 8 of Paragraph 1 of Article 66 of the Law on
the Constitutional Court, petitions for the examination of the
compliance of legal acts with the Constitution must contain the
position of the petitioner and legal support of such position.
The Constitutional Court, taking account of the arguments
set down in the petition of the petitioner, will investigate
the compliance with the Constitution of:
1) the provision "a parliamentary group shall consist of
at least seven Seimas members" of Paragraph 2 of Article 38 of
the Statute of the Seimas;
2) Paragraph 5 of Article 41 of the Statute of the Seimas;
3) Paragraph 5 of Article 152, the provision "only those
draft amendments proposed by a Seimas member shall be put to
the vote at the time of adoption of a draft law which are
supported by not less than 1/5 of the Seimas members" of
Paragraph 4 of Article 155 and Paragraph 5 of Article 156 of
the Statute of the Seimas;
4) Paragraph 4 and the provision "decisions made by the
person presiding over the sitting during the Government hour
shall be indisputable" of Paragraph 11 of Article 208 of the
Statute of the Seimas;
5) Paragraph 1 of Article 23 and the provision of
Paragraph 3 of Article 231 of the Statute of the Seimas whereby
upon hearing the Prosecutor General's report on a crime
committed by a Seimas member, the Seimas shall decide whether
to give its approval to bring the concrete person to criminal
responsibility according to the procedure provided for in the
Statute of the Seimas or to initiate preliminary actions for
impeachment proceedings in case there is a proposal from the
entities listed in Paragraph 1 of Article 230 of the Statute of
the Seimas.
II
Motivating that the rights of Seimas members established
in the Constitution are restricted, the petitioner-a group of
Seimas members-disputes the compliance of respective provisions
of Articles 23, 38, 41, 152, 155, 156, 208, 231 of the Statute
of the Seimas with the Constitution.
Article 76 of the Constitution provides that the structure
and procedure of activities of the Seimas shall be determined
by the Statute of the Seimas. This constitutional provision
grants the right to the Seimas to determine its structure and
procedure of activities by a legal act having the power of law.
Thus the Constitution establishes the discretion of the Seimas
in this area. Alongside, it needs to be noted that the Seimas,
establishing its structure and procedure of activities, may not
violate the principles and norms of the Constitution, nor the
status of a Seimas member established in the Constitution.
III
On the compliance of the provision "a parliamentary group
shall consist of at least seven Seimas members" of Paragraph 2
of Article 38 of the Statute of the Seimas with Paragraph 4 of
Article 59 of the Constitution.
1. Paragraph 2 of Article 38 of the Statute of the Seimas
provides: "A parliamentary group shall consist of at least
seven Seimas members. A member of the Seimas may be a member of
one parliamentary group only."
In the opinion of the petitioner, the provision of
Paragraph 2 of Article 38 of the Statute of the Seimas that a
parliamentary group shall consist of at least seven Seimas
members restricts opportunities for a Seimas member to
implement the right of free mandate which is defined in Article
59 of the Constitution.
The petitioner notes that in the earlier in force wording
of the Statute of the Seimas it was provided that a
parliamentary group shall consist of at least three Seimas
members. The petitioner is of the opinion that the increase of
the number of Seimas members who may form a parliamentary group
restricts opportunities for a Seimas member to implement the
right of free mandate.
2. Paragraph 4 of Article 59 of the Constitution provides
that while in office, Seimas members shall act in accordance
with the Constitution of the Republic of Lithuania, the
interests of the state, as well as their own consciences, and
may not be restricted by any mandates.
Interpreting Paragraph 4 of Article 59 of the
Constitution, in its ruling of 26 November 1993 the
Constitutional Court held that the Constitution establishes a
free mandate of a Seimas member and does not recognise any
imperative mandate. The essence of free mandate lies in the
freedom of a representative of the People to implement the
rights and duties vested in him without restricting this
freedom by any mandates, political requirements of parties and
organizations that nominated them, and without recognising the
right to recall a Seimas member. Under the Constitution, every
Seimas member is a representative of the whole People. All
Seimas members are equal, they must have equal opportunities to
take part in activities of the Seimas. Otherwise, a Seimas
member would not be able to represent the People in the Seimas
nor to express the interests of the People. The principles of
free mandate of Seimas member and equality of Seimas members
must be followed in the course of formation of the internal
structure of the Seimas. The free mandate of a Seimas member
entrenched in the Constitution is one of guarantees of
independence of activities and equality of Seimas members.
3. Under the Statute of the Seimas, Seimas members join
parliamentary groups of their own free will without restriction
of any mandates. Paragraph 2 of Article 38 of the Statute of
the Seimas establishes the minimal number of Seimas members who
may form a parliamentary group (not less than seven Seimas
members), as well as the principle that a member of the Seimas
may be a member of one parliamentary group only.
As mentioned, under Article 76 of the Constitution, the
structure and procedure of activities of the Seimas shall be
determined by the Statute of the Seimas, which shall have the
power of law. As parliamentary groups are structural units of
the Seimas, the procedure of their formation, the rights and
duties of parliamentary groups are established by the Seimas in
its statute. Establishing the procedure of formation of
parliamentary groups, as well as their rights and duties, the
Seimas may not violate the principles and norms of the
Constitution, nor a free mandate of a Seimas member entrenched
in the Constitution.
4. Under the Constitution, while in office, Seimas members
shall act in accordance with the Constitution, the interests of
the state, as well as their own consciences, and may not be
restricted by any mandates (Paragraph 4 of Article 59 of the
Constitution). Parliamentary groups-Seimas structural units of
political nature-also help Seimas members to form and express
their will as representatives of the People. Legal regulation
of formation of parliamentary groups is at the discretion of
the Seimas within the limits of the Constitution.
It was held in the Constitutional Court ruling of 26
November 1993 that, in determining the procedure of the
formation of parliamentary groups, the total number of
deputies, the nature of rights and duties of parliamentary
groups established in the statute, the necessity to guarantee
equal possibilities for all to express views and political
goals, the principle of the minority's protection, minimal
requirements for protection of parliamentary opposition, should
be taken into consideration. Furthermore, the Constitutional
Court noted in the said ruling that it is important to take
account of the number of members of parliamentary political
groups in cases of forming the governing body of the
parliament, when committees are set up and their heads are
appointed, means are distributed, and other parliamentary
functions are exercised. However, when applying the said
criteria, the principle of free mandate of a parliament member
may not be violated. Thus, in the course of the establishment
of the number of Seimas members who may form a parliamentary
group and the other conditions necessary for formation and
activities of parliamentary groups, it is important that such
legal regulation would not violate the aforementioned
requirements.
5. While deciding whether the disputed provision "a
parliamentary group shall consist of at least seven Seimas
members" of Paragraph 2 of Article 38 of the Statute of the
Seimas is in compliance with Paragraph 4 of Article 59 of the
Constitution, it needs to be noted that in itself establishment
of the minimal number of Seimas members who may form a
parliamentary group does not hinder Seimas members to act in
accordance with the Constitution, the interests of the state,
as well as their own consciences, and be not restricted by any
mandates. The disputed provision does not establish any
restrictions due to which a Seimas member, either alone or
together with other Seimas members, would not be able to
implement his rights and fulfil his duties set down in the
Constitution.
In the course of establishment or change of the already
established minimal number of Seimas members who may form a
parliamentary group there should not be evident disproportion
between the minimal number and the total number of Seimas
members. Comparing the minimal number of members of a
parliamentary group with the total number of Seimas members
(under Article 55 of the Constitution, the Seimas shall consist
of representatives of the People-141 Seimas members), one has
no grounds to assert that such disproportion has been
consolidated by the disputed legal regulation. Thus, by the
established legal regulation the right of Seimas members to
form parliamentary groups is not infringed, nor are Seimas
members hindered to act, while in office, in accordance with
the Constitution, the interests of the state, as well as their
own consciences, nor are they restricted by any mandates.
Taking account of the arguments set forth, one is to
conclude that the provision "a parliamentary group shall
consist of at least seven Seimas members" of Paragraph 2 of
Article 38 of the Statute of the Seimas is in compliance with
Paragraph 4 of Article 59 of the Constitution.
IV
On the compliance of Paragraph 5 of Article 41 of the
Statute of the Seimas with Article 1 and Paragraph 4 of Article
59 of the Constitution.
1. Paragraph 5 of Article 41 of the Statute of the Seimas
provides: "If an opposition parliamentary group or their
coalition has more than half of the Seimas minority members,
the head of such a parliamentary group or their coalition shall
be referred to as the Seimas Opposition Leader. The Opposition
Leader shall be entitled to additional rights of the Opposition
Leader as provided in this Statute."
2. The petitioner doubts whether the provision "if an
opposition parliamentary group or their coalition has more than
half of the Seimas minority members, the head of such a
parliamentary group or their coalition shall be referred to as
the Seimas Opposition Leader" of Paragraph 5 of Article 41 of
the Statute of the Seimas is in compliance with Article 1 and
Paragraph 4 of Article 59 of the Constitution. The petitioner
points out that in the earlier in force wording of the Statute
of the Seimas it was provided that one of the heads of
parliamentary groups forming an opposition coalition might be
elected leader of the opposition coalition. Disputed Paragraph
5 of Article 41 of the Statute of the Seimas contains an
additional precondition: the opposition parliamentary group or
their coalition must have more than half of the Seimas members
belonging to the Seimas minority so that its head could be
referred to as the opposition leader. Thereby the right of the
opposition is also abolished to elect its leader. Such
amendments of the Statute of the Seimas, according to the
petitioner, conflict with the principle of natural formation
and consolidation of the opposition, which has become an
established principle in traditional democracies.
3. Recognition of parliamentary opposition is a necessary
element of pluralistic democracy. The Statute of the Seimas
must establish guarantees for opposition activities.
While deciding whether the provision of Paragraph 5 of
Article 41 of the Statute of the Seimas is in conformity with
Paragraph 4 of Article 59 of the Constitution, one is to
elucidate the legal situation of the opposition leader
established in the Statute of the Seimas. Under Paragraph 5 of
Article 41 of the Statute of the Seimas, the head of a biggest
opposition parliamentary unit (opposition parliamentary group
or their coalition) which has more than half of the Seimas
minority members is referred to as the opposition leader. The
opposition leader, as mentioned, is entitled to additional
rights of the opposition leader as provided in the Statute of
the Seimas.
It is provided in the Statute of the Seimas that the
Seimas opposition leader shall be a member of the Board of the
Seimas (Paragraph 2 of Article 27 of the Statue of the Seimas),
he may take the floor once out of his turn during the
discussion (Paragraph 4 of Article 108 of the Statute of the
Seimas), in the course of the deliberation on the Programme of
the Government at the Seimas sitting, a report of the Seimas
opposition leader shall be heard first (Paragraph 2 of Article
196 of the Statute of the Seimas), after the presentation of
the Government's annual report, in the specially arranged
discussion of the Seimas, the Seimas opposition leader and
representatives of opposition parliamentary groups shall speak
first (Paragraph 3 of Article 207 of the Statute of the
Seimas), at the time when members of the Government are
responding to questions, the first two questions may be
presented by the Seimas opposition leader (Paragraph 5 of
Article 208 of the Statute of the Seimas). At the time when
heads of state institutions are responding to questions, the
first two questions may be presented by the Seimas opposition
leader and heads of opposition parliamentary groups (Paragraph
6 of Article 209 of the Statute of the Seimas). For the work
performed by the opposition leader, he shall be paid additional
salary the size of which shall be established by law (Paragraph
3 of Article 15 of the Statute of the Seimas).
Alongside, the Seimas opposition leader, as a member of
the Seimas Board, may not be chairman or deputy chairman of any
committee (Paragraph 5 of Article 46 of the Statute of the
Seimas), he may not be chairman or deputy chairman of permanent
commission or a commission whose term of powers exceeds one
year (Paragraph 1 of Article 74 of the Statute of the Seimas),
he may not be appointed to a ballot counting group (Paragraph 5
of Article 119 of the Statute of the Seimas) etc.
4. Taking account of the legal situation of the Seimas
opposition leader established in the Statute of the Seimas, it
is possible to assert that in the Statute of the Seimas this
legal institute is linked with representation of the group of
Seimas minority having more that half of its members. Under the
Statute of the Seimas, the head of an opposition parliamentary
group or coalition of opposition parliamentary groups shall be
referred to as the opposition leader, if the opposition
parliamentary group or coalition of opposition parliamentary
groups has more than half of the Seimas members belonging to
the Seimas minority. It needs to be noted that the opposition
parliamentary group or coalition of opposition parliamentary
groups, which has more than half of the Seimas members
belonging to the Seimas minority, itself freely elects head of
the parliamentary group or coalition of opposition
parliamentary groups, who, under Paragraph 5 of Article 41 of
the Statute of the Seimas, is referred to as the Seimas
opposition leader. Such a procedure of opposition leader's
recognition is in conformity with the principle of free mandate
of a Seimas member established in the Constitution, it does not
hinder Seimas members to act, while in office, in accordance
with the Constitution, the interests of the State, as well as
their own consciences, and be not restricted by any mandates.
The Statute of the Seimas does not establish any rights of
the opposition leader which might entitle him to act as the
head of all Seimas opposition parliamentary groups or as the
head of the entire Seimas minority, i.e. to act in the name of
the Seimas members who have not empowered him to act so. The
fact that he may make use of the aforementioned rights
established in the Statute of the Seimas, does not mean that
other opposition parliamentary groups, their coalitions or
other Seimas members lose their rights to make use of their
rights provided for in the Statute of the Seimas.
Taking account of the content of the legal institute of
the Seimas opposition leader, it is impossible to maintain that
the legal regulation consolidated in the disputed norms of
Paragraph 5 of Article 41 of the Statute of the Seimas bars the
way to Seimas members to act, while in office, in accordance
with the Constitution, the interests of the State, as well as
their own consciences, and be not restricted by any mandates.
Therefore Paragraph 5 of Article 41 of the Statute of the
Seimas is in compliance with Paragraph 4 of Article 59 of the
Constitution.
5. The Constitutional Court notes that the notion "Seimas
Opposition Leader" employed in Paragraph 5 of Article 41 of the
Statute of the Seimas is not in line with the legal status of
the Seimas opposition leader established in the Statute of the
Seimas. Under the Statute of the Seimas, the head of an
opposition parliamentary group or coalition of opposition
parliamentary groups shall be referred to as the opposition
leader, if the opposition parliamentary group or coalition of
opposition parliamentary groups has more than half of the
Seimas members belonging to the Seimas minority; he enjoys
additional rights provided for in the Statute of the Seimas.
This legal institute, under the procedure of opposition
leader's recognition, is in conformity with the Constitution,
however, the title of this institute "Seimas Opposition Leader"
is ambiguous, as, if this notion is construed in a linguistic
manner only, it might be possible to assume that the Seimas
opposition leader represents all Seimas opposition
parliamentary groups or the entire Seimas minority. According
to the legal situation established in the Statute of the
Seimas, he is the head or representative of the opposition
parliamentary group or coalition of opposition parliamentary
groups which has more than half of the Seimas members belonging
to the Seimas minority. The rights granted to him do not
restrict the rights of other Seimas members, it does not hinder
them to implement a free mandate of a Seimas member which is
established in Paragraph 4 of Article 59 of the Constitution,
nor does it deny an opportunity for other Seimas parliamentary
groups to be opposition parliamentary groups.
In its ruling of 10 February 2000, the Constitutional
Court noted that in all cases legal regulation must be clear
and it must not lead to ambiguities, therefore in legal acts
concepts must be employed clearly and according to their real
meaning. In the context of the relations regulated in the
Statute of the Seimas the notion "Seimas Opposition Leader" is
imprecise. However, the aforesaid deficiency of the notion
"Seimas Opposition Leader" is not a sufficient ground to
recognise that the legal regulation established in Paragraph 5
of Article 41 of the Statute of the Seimas conflicts with the
Constitution.
The Constitutional Court notes that the requirements of
legal clarity and legal certainty pre-suppose a duty of the
Seimas to define more accurately the notion "Seimas Opposition
Leader" employed in Paragraph 4 of Article 41 and other
articles of the Statute of the Seimas so that this notion would
be in line with the actual legal situation.
6. Article 1 of the Constitution provides: "The State of
Lithuania shall be an independent and democratic republic."
In its rulings of 23 February 2000 and 18 October 2000,
the Constitutional Court noted that in this article of the
Constitution the fundamental principles of the Lithuanian State
are established: Lithuania is an independent state; republic is
the form of governance of the Lithuanian State; the state power
must be organised in a democratic way, and there must be a
democratic political regime in this country. The provisions of
Article 1 of the Constitution, as well as the principle of a
law-governed state established in the Constitution, determine
the main principles of organisation and activities of state
power of the Lithuanian Sate.
As mentioned, the regulation established in Paragraph 5 of
Article 41 of the Statute of the Seimas is in compliance with
the principle of free mandate of a Seimas member established in
the Constitution.
While analysing whether the institute of the Seimas
opposition leader is in conformity with the democratic
principles of organisation and activities of the power of the
State of Lithuania which are established in Article 1 of the
Constitution, one is to note that by this institute additional
guarantees are established for the opposition parliamentary
group or their coalition which has more than half of the
members belonging to the Seimas minority to take part in
activities of the Seimas. Such legal regulation is in
compliance with the provision of Article 1 of the Constitution
that the State of Lithuania shall be an independent and
democratic republic.
Taking account of the arguments set forth, one is to
conclude that Paragraph 5 of Article 41 of the Statute of the
Seimas is in compliance with Article 1 of the Constitution.
V
On the compliance of Paragraph 5 of Article 152, the
provision "only the draft amendments, supplements and
expunctions proposed by a Seimas member shall be put to the
vote at the time of adoption of a draft law which, after their
announcement by the person presiding over the sitting, are
supported by not less than 1/5 of the Seimas members" of
Paragraph 4 of Article 155 and Paragraph 5 of Article 156 of
the Statute of the Seimas with Paragraph 4 of Article 59 and
Paragraph 1 of Article 68 of the Constitution.
1. Paragraph 5 of Article 152 of the Statute of the Seimas
provides: "Amendments and supplements presented under procedure
established in Paragraph 1 of this Article shall not be
submitted for consideration by the person presiding over the
sitting in case they are supported by less than 10 Seimas
members."
Paragraph 4 of Article 155 of the Statute of the Seimas
provides: "Only the draft amendments, supplements and
expunctions proposed by a Seimas member shall be put to the
vote at the time of adoption of a draft law which, after their
announcement by the person presiding over the sitting, are
supported by not less than 1/5 of the Seimas members. The
persons enjoying the right of legislative initiative must
submit all proposed amendments, supplements or expunctions
concerning the draft law to the Secretariat of the sitting no
later than 24 hours prior to the time of commencement of the
procedure of the adoption of the law, which is provided in the
agenda of the sitting."
Paragraph 5 of Article 156 of the Statute of the Seimas
provides: "New amendments, supplements and expunctions
presented under procedure established in Paragraph 4 of Article
155 shall not be submitted for consideration by the person
presiding over the sitting in case they are supported by less
than 1/5 of the Seimas members."
2. In the opinion of the petitioner, Paragraph 5 of
Article 152 of the Statute of the Seimas establishing that in
the course of the consideration of a draft at Seimas sittings,
the person presiding over the siting does not put to the vote
the amendments and supplements proposed by Seimas members in
case they are supported by less than 10 members of the Seimas,
restricts the right of legislative initiative of Seimas
members, which is established in Article 68 of the
Constitution, and conflicts with the principle of free mandate
of a Seimas member (Article 59 of the Constitution).
The petitioner maintains that this right is even more
restricted by the provisions of Paragraph 4 of Article 155 and
Paragraph 5 of Article 156 of the Statute of the Seimas, under
which only the amendments proposed by a Seimas member are put
to the vote which are supported by not less than 1/5 of the
Seimas members. Under the disputed provisions, the Seimas
members belonging to the majority are placed in an advantageous
situation, meanwhile, in fact, proposals of members of small
parliamentary groups (including the opposition) cannot be
implemented. Thus the principle of equality of Seimas members
is violated.
3. Paragraph 4 of Article 59 of the Constitution provides
that, in office, Seimas members shall act in accordance with
the Constitution of the Republic of Lithuania, the interests of
the state, as well as their own consciences, and may not be
restricted by any mandates.
Article 68 of the Constitution provides that the right of
legislative initiative in the Seimas shall belong to the
members of the Seimas, the President of the Republic, and the
Government. Citizens of the Republic of Lithuania shall also
have the right of legislative initiative. A draft law may be
submitted to the Seimas by 50,000 citizens of the Republic of
Lithuania who have the right to vote, while the Seimas must
consider this draft law.
Implementation of the right of legislative initiative is
the first phase of legislation procedure. As mentioned, Article
68 of the Constitution provides for entities to whom belongs
the right of legislative initiative: Seimas members, the
President of the Republic, the Government, 50,000 citizens of
the Republic of Lithuania who have the right to vote. In its
ruling of 8 November 1993, the Constitutional Court held that
the essence and purpose of the right of legislative initiative
is to initiate the process of legislation. In practice, this
right is implemented by submission of some concrete draft law
to the parliament. After an entity that is pointed out in the
Constitution submits a draft law, the legislative
institution-the Seimas-is obligated to begin its consideration.
4. The norm of Paragraph 5 of Article 152 of the Statute
of the Seimas, whereby amendments and supplements presented
under procedure established in Paragraph 1 of this Article
shall not be submitted for consideration by the person
presiding over the sitting in case they are supported by less
than 10 Seimas members, regulates relations of consideration of
draft laws in Seimas sittings. According to the petitioner,
establishment of such requirements conflicts with the right of
legislative initiative of Seimas members which is entrenched in
the Constitution and the principle of free mandate of a Seimas
member.
While considering whether Paragraph 5 of Article 152 of
the Statute of the Seimas is in compliance with the right of
legislative initiative that is entrenched in Paragraph 1 of
Article 68 of the Constitution, one is to take account of the
fact that by the disputed norm relations of consideration of
draft laws are regulated, i.e. the relations which occur after
the right of legislative initiative has been implemented. In
its ruling of 8 November 1993, the Constitutional Court noted:
"In this phase, remarks, proposals, amendments and supplements
on the draft law submitted by the members of the Seimas are
relevant elements of the phase of consideration, however, they
cannot be interpreted as legislative initiative because it has
already been implemented. In practice, proposals, amendments
and supplements are submitted up to the moment of law
enactment. The procedure of their submission and consideration
is regulated by regulation norms of the consideration of draft
laws. It is peculiar that the procedure differs in essence from
implementation of the right of legislative initiative. The
right of legislative initiative is also different from the
submission of amendments and supplements to the draft under
consideration in its purpose and, after all, they are different
parts of the phases of the process of legislation."
Paragraph 5 of Article 152 of the Statute of the Seimas
does not regulate relations of implementation of legislative
initiative, therefore there are no legal grounds to assert that
the said paragraph infringes the right of legislative
initiative of Seimas members which is entrenched in Article 68
of the Constitution.
Under Paragraph 5 of Article 152 of the Statute of the
Seimas, further destiny of the amendments and supplements
proposed by Seimas members in the phase of consideration of a
draft law is linked with support of certain number of Seimas
member. Deciding whether this legal regulation is in conformity
with the principle of free mandate of a Seimas member
entrenched in Paragraph 4 of Article 59 of the Constitution,
one is to note that the disputed norm does not deny the right
of a Seimas member to participate in consideration of draft
laws and propose his amendments or supplements. The disputed
provisions of Paragraph 5 of Article 152 of the Statute of the
Seimas, while regulating relations of procedure of Seimas
activities, provide for the requirements under which amendments
and supplements to draft laws are discussed. Such requirements
do not restrict the right of Seimas members of free decision,
nor do they hinder Seimas members, when they are in office,
from acting in accordance with the Constitution, the interests
of the state, as well as their own consciences, nor from being
restricted by any mandates. Therefore, it is impossible to
assess the provisions of Paragraph 5 of Article 152 of the
Statute of the Seimas under which further consideration of the
amendments and supplements and voting thereon are linked with
support of not less than 10 Seimas members as conflicting with
the principle of free mandate of a Seimas member entrenched in
Paragraph 4 of Article 59 of the Constitution.
5. Relations of adoption of draft laws in Seimas sittings
are regulated by the provision "only the draft amendments,
supplements and expunctions proposed by a Seimas member shall
be put to the vote at the time of adoption of a draft law
which, after their announcement by the person presiding over
the sitting, are supported by not less than 1/5 of the Seimas
members" of Paragraph 4 of Article 155 and Paragraph 5 of
Article 156 of the Statute of the Seimas.
While account is taken of the arguments set forth in the
course of the assessment of the compliance of Paragraph 5 of
Article 152 of the Statute of the Seimas with Paragraph 1 of
Article 68 and Paragraph 4 of Article 59 of the Constitution,
it is impossible to consider the disputed provision of
Paragraph 4 of Article 155 and Paragraph 5 of Article 156 of
the Statute of the Seimas to have established legal regulation
conflicting with the right of legislative initiative of a
Seimas member provided for in Paragraph 1 of Article 68 of the
Constitution and the principle of free mandate of a Seimas
member consolidated in Article 59 of the Constitution.
6. On the grounds of the arguments set forth one is to
conclude that Paragraph 5 of Article 152, the provision "only
the draft amendments, supplements and expunctions proposed by a
Seimas member shall be put to the vote at the time of adoption
of a draft law which, after their announcement by the person
presiding over the sitting, are supported by not less than 1/5
of the Seimas members" of Paragraph 4 of Article 155 and
Paragraph 5 of Article 156 of the Statute of the Seimas are in
compliance with Paragraph 4 of Article 59 and Paragraph 1 of
Article 68 of the Constitution.
VI
On the compliance of Paragraph 4 and the provision
"decisions made by the person presiding over the sitting during
the Government hour shall be indisputable" of Paragraph 11 of
Article 208 of the Statute of the Seimas with Paragraph 4 of
Article 59, Paragraph 1 of Article 61 and Item 9 of Article 67
of the Constitution.
1. Paragraph 4 of Article 208 of the Statute of the Seimas
provides: "The person presiding over the Seimas sitting may cut
short any question posed by a Seimas member to a member of the
Government if, in the opinion of the person presiding over the
sitting, this question resembles a statement of the Seimas
member or a declaration of his opinion."
Paragraph 11 of Article 208 of the Statute of the Seimas
provides: "Decisions made by the person presiding over the
sitting during the Government hour shall be indisputable,
however, the Seimas member, who is not satisfied with the
answer of a minister, or whose question was considered not
urgent or not having social importance by the person presiding
over the sitting, may, after the Government hour, state that he
will pose his question as a written question."
2. In the opinion of the petitioner, the opportunity
provided for in Paragraph 4 of Article 208 of the Statute of
the Seimas for the person presiding over the Seimas sitting to
cut short any question of a Seimas member posed to a member of
the Government if, in the opinion of the person presiding over
the sitting, this question resembles a statement of the Seimas
member or a declaration of his opinion, and, if this
opportunity is linked with the provision of Paragraph 11 of the
same article whereby decisions made by the person presiding
over the sitting during the Government hour shall be
indisputable, restricts the rights of Seimas members and
conflicts with the provisions of Articles 59, 61 and 67 of the
Constitution. Taking into consideration the arguments set forth
in the petition, the Constitutional Court will investigate
whether the disputed provisions of the Statute of the Seimas
are in conformity with Paragraph 4 of Article 59, Paragraph 1
of Article 61 and Item 9 of Article 67 of the Constitution
3. Paragraph 4 of Article 59 of the Constitution
establishes the principle of free mandate of a Seimas member,
which ensures a representative of the People to unrestrictedly
implement the rights and fulfil duties granted to him by the
Constitution and laws.
Paragraph 1 of Article 61 of the Constitution provides
that Seimas members shall have the right to submit inquiries to
the Prime Minister, the individual Ministers, and the heads of
other State institutions formed or elected by the Seimas. Said
persons or bodies must respond orally or in writing at the
Seimas session in the manner established by the Seimas.
Paragraph 1 of Article 61 of the Constitution is linked
with Article 67 of the Constitution in which the competence of
the Seimas is consolidated. Item 9 of Article 67 of the
Constitution provides that the Seimas shall supervise the
activities of the Government, and may express non-confidence in
the Prime Minister or individual ministers.
4. Under Article 76 of the Constitution, the structure and
procedure of activities of the Seimas shall be determined by
the Statute of the Seimas. Thus, the Seimas is empowered to
establish the procedure of responding by members of the
Government to posed questions and the rights of the person
presiding over the Seimas sitting during the Government hour.
However, implementing these powers, the Seimas may not
establish in the Statute of the Seimas such a procedure of
responding by members of the Government to posed questions nor
such rights of the person presiding over the sitting, which
might violate principles and norms of the Constitution, as well
as the principle of free mandate of a Seimas member entrenched
in the Constitution.
5. Paragraph 1 of Article 208 of the Statute of the Seimas
provides that during a session of the Seimas, at the beginning
of each Thursday evening sitting of the Seimas during the
Government hour, members of the Government shall for the
duration of 60 minutes answer questions given orally by Seimas
members. The Seimas sitting in which members of the Government
answer questions given by Seimas members shall be presided by
the person presiding over the sitting who is either the
Chairman of the Seimas of a Deputy Chairman of the Seimas.
Under Article 100 of the Statute of the Seimas, the person
presiding over the Seimas sitting announces the opening and
closing of a sitting, takes care of the working procedure of
the sitting, grants the floor to the Seimas members, directs
the discussions, watches over the duration of speeches,
formulates questions to be put to the vote, etc.
6. Under Paragraph 4 of Article 208 of the Statute of the
Seimas, the person presiding over the Seimas sitting may cut
short any question posed by a Seimas member to a member of the
Government if, in the opinion of the person presiding over the
sitting, this question resembles a statement of the Seimas
member or a declaration of his opinion. Paragraph 11 of Article
208 of the Statute of the Seimas provides that decisions made
by the person presiding over the sitting during the Government
hour shall be indisputable.
While analysing the compliance of these norms of the
Statute of the Seimas with the principle of free mandate of a
Seimas members entrenched in Paragraph 4 of Article 59 of the
Constitution, one is to note that under Paragraph 1 of Article
66 of the Constitution, the Chairperson or Deputy Chairperson
of the Seimas shall preside over sittings of the Seimas. The
duty of the person presiding over Seimas sittings is to preside
over Seimas sittings and to ensure that the procedure of Seimas
activities would be adhered to. He may not, while making use of
the rights of the person presiding over the Seimas sitting,
exert influence on Seimas members regarding decisions which
must be adopted, nor restrict the rights of Seimas members, nor
control the content of their statements. Otherwise the essence
of the Seimas as a representative institution and the principle
of free mandate of a Seimas member entrenched in the
Constitution, ensuring equality of Seimas members and their
opportunity to freely express their will, would be denied.
Under Paragraph 4 of Article 208 of the Statute of the
Seimas, the person presiding over the Seimas sitting may cut
short any question if, in the opinion of the person presiding
over the sitting, this question resembles a statement of the
Seimas member or a declaration of his opinion. Paragraph 11 of
Article 208 of the Statute of the Seimas provides that his
decisions shall be indisputable. While analysing the disputed
norms of the Statute of the Seimas, one is to note, first of
all, that such legal regulation means that the person presiding
over the Seimas sitting is granted the right to assess the
content of the question of the Seimas member. Secondly, the
criterion established in the Statute of the Seimas, permitting
to restrict the right of a Seimas member to pose a question to
a member of the Government, is a subjective one-it is an
assumption of the person presiding over the Seimas sitting that
the question is similar to a statement of the Seimas member or
expression of his opinion. Thirdly, under the disputed legal
regulation such a decision of the person presiding over the
sitting to cut short the question of the Seimas member is
indisputable.
The right of the person presiding over the sitting to cut
short a question of the Seimas member, in case the question,
under assumption of the person presiding over the sitting, is
similar to a statement of the Seimas member or expression of
his opinion, creates preconditions to restrict implementation
of the rights of Seimas members. Due to such indisputability of
the decision of the person presiding over the sitting, the
implementation of the right of the Seimas member depends only
on the point of view of the person presiding over the sitting.
Not only the implementation of free mandate of a Seimas member
can be restricted by such regulation but also the equality of
Seimas members as representatives of the People could be
denied.
Taking account of the arguments set forth, one is to
conclude that Paragraph 4 of Article 208 and the provision
"decisions made by the person presiding over the sitting during
the Government hour shall be indisputable" of Paragraph 11 of
Article 208 of the Statute of the Seimas conflict with
Paragraph 4 of Article 59 of the Constitution.
7. Paragraph 1 of Article 61 of the Constitution provides
for the right of Seimas members to submit inquiries. The Prime
Minister, the individual Ministers, and the heads of other
State institutions formed or elected by the Seimas must respond
orally or in writing at the Seimas session in the manner
established by the Seimas.
The inquiry by a Seimas member, as a constitutional
institute, presupposes the fact that the Statute of the Seimas
must establish a duty of respective officials to respond to the
Seimas member, and that it must be responded at the Seimas
session in the manner established by the Seimas. Submission of
inquiries and procedure of their consideration are regulated in
Chapter 34 of the Statute of the Seimas. It is provided therein
that a Seimas member or group of Seimas members shall address
in writing a member of the Government or another head of
Government institution, who is appointed by the Seimas or for
the appointment of whom the consent of the Seimas is necessary,
save the courts, demanding information on his activities and
adopted decisions. Under the Statute of the Seimas, only such a
question is regarded as an inquiry which has been posed to
state institutions by a Seimas member or group of Seimas
members but which, however, in their opinion, has not been
properly considered or which has been decided in the negative.
The Statute of the Seimas regulates submission of inquiries,
responses to inquiries and consideration of inquiries at Seimas
sittings.
Article 208 of the Statute of the Seimas establishes the
procedure of responding by members of the Government to
questions during the Government hour. The disputed norms of the
Statute of the Seimas do not regulate directly relations of
implementation of the right of inquiry of Seimas members. As
the disputed norms of the Statute of the Seimas regulate
different relations from those regulated in Paragraph 1 of
Article 61 of the Constitution, then Paragraph 4 and the
provision "decisions made by the person presiding over the
sitting during the Government hour shall be indisputable" of
Paragraph 11 of Article 208 of the Statute of the Seimas are in
compliance with Paragraph 1 of Article 61 of the Constitution.
Different character of relations regulated in the Constitution
and the Statute of the Seimas also permits to assert that
Paragraph 4 and the provision "decisions made by the person
presiding over the sitting during the Government hour shall be
indisputable" of Paragraph 11 of Article 208 of the Statute of
the Seimas are in compliance with Item 9 of Article 67 of the
Constitution as well.
VII
On the compliance of Paragraph 1 of Article 23 and
Paragraph 3 of Article 231 of the Statute of the Seimas with
Paragraphs 1 and 2 of Article 62, Article 74 and Paragraph 4 of
Article 59 of the Constitution.
1. Paragraph 1 of Article 23 of the Statute of the Seimas
provides:
"After the Seimas has heard the report of the Prosecutor
General concerning the crime committed by a Seimas member, an
interval of not less than one hour but not more than two hours
shall be announced at the Seimas sitting. After the interval,
the Seimas shall adopt one of the two decisions:
1) to form an investigatory commission for the consent to
bring the Seimas member to criminal responsibility;
2) to initiate preliminary actions of impeachment
proceedings-such a decision is considered and adopted only in
cases when there is a proposal from entities pointed out in
Paragraph 1 of Article 230 of this Statute."
Paragraph 3 of Article 231 of the Statute of the Seimas
provides: "Upon hearing the Prosecutor General's report on a
crime committed by other persons, the Seimas shall decide
whether to give its approval to bring the concrete person to
criminal responsibility (according to the procedure provided
for in this Statute) or to initiate preliminary impeachment
proceedings (in cases when there is a proposal from entities
pointed out in Paragraph 1 of Article 230 of this Statute). In
case the Seimas decides to give its consent to bring the said
persons to criminal responsibility, neither preliminary actions
of impeachment proceedings nor the procedure for impeachment
proceedings in the Seimas may be initiated as regards the same
accusation until the issue of criminal responsibility is
decided, i.e. until the court adopts a judgement of acquittal,
or an effective judgement of conviction, or until it dismisses
the case."
2. In the opinion of the petitioner, the provision of
Paragraph 1 of Article 23 of the Statute of the Seimas, whereby
after the Seimas has heard the report of the Prosecutor General
concerning the crime committed by a Seimas member, it shall
adopt one of the two decisions: to form an investigatory
commission for the consent to bring the Seimas member to
criminal responsibility or to initiate preliminary actions of
impeachment proceedings, restricts the right of free decision
of the Seimas, conflicts with the provisions of Articles 62 and
74 of the Constitution and limits the constitutional right and
duty of Seimas members consolidated in Paragraph 4 of Article
59 of the Constitution that Seimas members must act in
accordance with the Constitution, the interests of the state,
as well as their own consciences.
The petitioner also maintains that the provision of
Paragraph 3 of Article 231 of the Statute of the Seimas,
whereby after the Seimas has heard the report of the Prosecutor
General concerning the crime committed by a Seimas member, it
shall adopt one of the said two decisions, conflicts with the
provisions of Articles 62 and 74 of the Constitution.
3. Paragraphs 1 and 2 of Article 62 of the Constitution
provides that the person of a Seimas member shall be inviolable
and that Seimas members may not be brought to criminal
responsibility, may not be arrested, and may not be subjected
to any other restriction of personal freedom without the
consent of the Seimas.
These provisions consolidate additional guarantees of
personal inviolability of Seimas members, which are necessary
for proper fulfilment of his duties as a representative of the
People. The right to freedom and personal inviolability of a
Seimas member during his term of office may be restricted only
upon consent of the Seimas.
Under Article 74 of the Constitution, for gross violation
of the Constitution, breach of oath, or upon the disclosure of
the commission of crime by a Seimas member, the Seimas may, by
three-fifths majority vote of all the Seimas members, revoke
his mandate of Seimas member. Such actions shall be carried out
in accordance with the procedure for impeachment proceedings
which shall be established by the Statute of the Seimas.
In the legal system of Lithuania, impeachment of a Seimas
member is a constitutional institute. In its ruling of 11 May
1999, the Constitutional Court held inter alia that the
following elements of impeachment are established in Article 74
of the Constitution: (1) impeachment as a parliamentary
procedure may be applied only to the President of the Republic,
the Chairperson and judges of the Constitutional Court, the
Chairperson and judges of the Supreme Court, the Chairperson
and judges of the Court of Appeal, as well as Seimas members;
(2) impeachment proceedings may be instituted only for gross
violations of the Constitution, breach of oath or upon the
disclosure of the commission of crime; (3) the objective of
impeachment proceedings is to decide the question of the
constitutional responsibility of the said persons; (4)
impeachment is carried out by the Seimas; (5) to revoke the
mandate of a Seimas member, not less than three-fifths majority
vote of all the Seimas members is necessary. Under Article 74
of the Constitution, establishment of the procedure for
impeachment proceedings is also within the competence of the
Seimas: the latter must define it in the Statute of the Seimas.
By establishing the procedure for impeachment proceedings, the
Seimas may not violate principles and norms of the
Constitution.
4. While investigating the compliance of Paragraph 1 of
Article 23 and of the disputed norm of Paragraph 3 of Article
231 of the Statute of the Seimas with Article 74 of the
Constitution, one is to note that, under Article 74 of the
Constitution, one of the bases for impeachment is "upon the
disclosure of the commission of crime". The formula "upon the
disclosure of the commission of crime" employed in Article 74
of the Constitution presumes the fact that not only the fact of
commission of crime must be established but also the official
who has committed the crime. Article 229 of the Statute of the
Seimas provides that the official against whom impeachment may
be applied may be brought to constitutional responsibility in
accordance with impeachment procedure in case he is "suspected
of commission of crime". Under Paragraph 1 of Article 231 of
the Statute of the Seimas, upon establishing that the person is
suspected of having committed a crime, the Prosecutor General
shall immediately inform the Seimas thereon and submit
appropriate material thereto. Paragraph 3 of Article 231 of the
Statute of the Seimas provides that "upon hearing the
Prosecutor General's report on a crime committed by other
persons, the Seimas shall decide whether to give its approval
to bring the concrete person to criminal responsibility <...>
or to initiate preliminary actions of impeachment proceedings
<...>. In case the Seimas decides to give its consent to bring
the said persons to criminal responsibility, neither
preliminary actions of impeachment proceedings nor the
procedure for impeachment proceedings in the Seimas may be
initiated as regards the same accusation until the issue of
criminal responsibility is decided." Thus, a conclusion is to
be drawn that a provision has been consolidated in the
procedure of impeachment for commission of crime established in
the Statute of the Seimas that commission of crime and
culpability of the person may be found out in two ways: (1) by
carrying out full impeachment procedure at the Seimas itself;
such a procedure is finished by voting on the removal of the
person from office or revocation of his mandate provided the
Seimas confirms the conclusion of the special investigatory
commission; (2) by entrusting the establishment of the actual
circumstances of the case to interrogative bodies and the
court, however, by leaving an opportunity for the Seimas to
decide the question of removal of the person from office or
that of revocation of his mandate of Seimas member.
In its ruling of 11 May 1999, the Constitutional Court
held that a formal statement of the charge as presented by
Seimas members themselves is not the only form possible for
initiating impeachment proceedings. Giving its consent to bring
the person to criminal responsibility, the Seimas also decides
that the actual circumstances of the case will be investigated
by judicial institutions-the interrogation and the court-but
not by any special commission formed by the Seimas. It means
that in case the court recognises that the person is guilty of
the commission of crime, later one will not have to submit a
special proposal to institute impeachment because of the
commission of crime. Such treatment of impeachment is in line
with the bases for impeachment consolidated in the
Constitution.
While these arguments are taken into consideration, it is
possible to assert that, by Paragraph 1 of Article 23 and the
disputed norm of Paragraph 3 of Article 231 of the Statute of
the Seimas, the Seimas implemented its discretion in
establishing differentiated impeachment proceedings. Such
regulation is in line with the requirements for impeachment
proceedings established in Article 76 of the Constitution.
5. As mentioned, a decision either to form an
investigatory commission for the consent to bring the Seimas
member to criminal responsibility or to initiate preliminary
actions of impeachment proceedings is adopted by the Seimas,
i.e. by Seimas members by voting. Therefore, it is impossible
to assert that such regulation violates the provision of
Article 62 of the Constitution that Seimas members may not be
brought to criminal responsibility, may not be arrested, and
may not be subjected to any other restriction of personal
freedom without the consent of the Seimas. The disputed norms
of the Statute of the Seimas do not violate the bases of
constitutional status of a Seimas member entrenched in
Paragraph 4 of Article 59 of the Constitution, either. Under
the disputed provisions of the Statute of the Seimas, a
decision is adopted by Seimas members by voting, i.e. every
Seimas member, in accordance with the Constitution, the
interests of the state, as well as his own conscience, without
restriction by any mandates, may decide on how he will vote.
Taking account of the aforementioned arguments, one is to
conclude that Paragraph 1 of Article 23 and the disputed norm
of Paragraph 3 of Article 231 of the Statute of the Seimas
that, upon hearing the Prosecutor General's report on a crime
committed by a Seimas member, the Seimas shall decide whether
to give its approval to bring the concrete person to criminal
responsibility according to the procedure provided for in this
Statute or to initiate preliminary actions of impeachment
proceedings in cases when there is a proposal from entities
pointed out in Paragraph 1 of Article 230 of this Statute are
in compliance with Paragraphs 1 and 2 of Article 62, Article 74
and Paragraph 4 of Article 59 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55, 56 and Item 2 of
Paragraph 1 and Paragraphs 3 and 4 of Article 69 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provision "a parliamentary group
shall consist of at least seven Seimas members" of Paragraph 2
of Article 38, Paragraph 5 of Article 41, Paragraph 5 of
Article 152, the provision "only the draft amendments,
supplements and expunctions proposed by a Seimas member shall
be put to the vote at the time of adoption of a draft law
which, after their announcement by the person presiding over
the sitting, are supported by not less than 1/5 of the Seimas
members" of Paragraph 4 of Article 155, and Paragraph 5 of
Article 156 of the Statute of the Seimas of the Republic of
Lithuania are in compliance with the Constitution of the
Republic of Lithuania.
2. To recognise that Paragraph 1 of Article 23 and the
disputed norm of Paragraph 3 of Article 231 of the Statute of
the Seimas of the Republic of Lithuania that, upon hearing the
Prosecutor General's report on a crime committed by a Seimas
member, the Seimas shall decide whether to give its approval to
bring the concrete person to criminal responsibility according
to the procedure provided for in the Statute of the Seimas or
to initiate preliminary actions of impeachment proceedings in
cases when there is a proposal from entities pointed out in
Paragraph 1 of Article 230 of this Statute are in compliance
with the Constitution of the Republic of Lithuania.
3. To recognise that Paragraph 4 of Article 208 and the
provision "decisions made by the person presiding over the
sitting during the Government hour shall be indisputable" of
Paragraph 11 of Article 208 of the Statute of the Seimas of the
Republic of Lithuania conflict with Paragraph 4 of Article 59
of the Constitution of the Republic of Lithuania.
4. To dismiss the legal proceedings as regards the request
to investigate the compliance of Paragraph 4 of Article 180 of
the Statute of the Seimas of the Republic of Lithuania with
Articles 130 and 132 of the Constitution of the Republic of
Lithuania.
5. To dismiss the case as regards the request whether the
fact that Article 23 of the Statute of the Seimas of the
Republic of Lithuania does not provide that, after the Seimas
gives its consent for bringing the Seimas member to criminal
responsibility, the Seimas member may not be arrested in the
House of the Seimas is in compliance with Articles 8 and 62 of
the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.