Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 3
(WORDING OF 12 OCTOBER 2000), PARAGRAPH 4 OF
ARTICLE 3 (WORDING OF 12 OCTOBER 2000), ITEM 2 OF
PARAGRAPH 1 OF ARTICLE 5 (WORDING OF 12 OCTOBER
2000), PARAGRAPH 1 OF ARTICLE 18 (WORDING OF 12
OCTOBER 2000), ITEMS 2, 3, 4, 8, AND 15 OF
PARAGRAPH 1 OF ARTICLE 19 (WORDING OF 12 OCTOBER
2000), ITEMS 1, 5, 7, 9, 12, 15, 16, 17, AND 18 OF
PARAGRAPH 1 OF ARTICLE 21 (WORDING OF 12 OCTOBER
2000), ITEM 6 OF THE SAME PARAGRAPH (WORDINGS OF
12 OCTOBER 2000 AND 25 SEPTEMBER 2001), AND ITEM
14 OF THE SAME PARAGRAPH (WORDINGS OF 12 OCTOBER
2000 AND 8 NOVEMBER 2001) OF THE REPUBLIC OF
LITHUANIA LAW ON LOCAL SELF-GOVERNMENT, AS WELL AS
THE REPUBLIC OF LITHUANIA CONSTITUTIONAL LAW ON
THE PROCEDURE OF THE APPLICATION OF THE LAW ON THE
ALTERATION OF ARTICLE 119 OF THE CONSTITUTION, AND
THE REPUBLIC OF LITHUANIA LAW ON THE ENTERING INTO
THE LIST OF CONSTITUTIONAL LAWS OF THE
CONSTITUTIONAL LAW ON THE PROCEDURE OF THE
APPLICATION OF THE LAW ON THE ALTERATION OF
ARTICLE 119 OF THE CONSTITUTION, WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
24 December 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the group of members of the Seimas
of the Republic of Lithuania, the petitioner, who was Petras
Papovas,
the representative of the party concerned, who was Ona
Buišienė, chief consultant to the Legal Department of the
Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 26
November 2002 in its public hearing heard Case No. 49/2000
which originated in a petition of a group of members of the
Seimas of the Republic of Lithuania, the petitioner, requesting
to investigate as to whether the notions "municipal
institutions and municipal control institutions" established in
Paragraphs 3 and 4 of Article 3 of the Republic of Lithuania
Law on the Amendment of the Law on Local Self-Government were
not in conflict with Paragraphs 1, 3 and 4 of Article 119 of
the Constitution of the Republic of Lithuania, whether the
provision "the mayor of the municipality shall be an executive
institution" of Paragraph 3 of Article 3 of the same law was
not in conflict with Paragraph 2 of Article 5, Paragraphs 1 and
4 of Article 119 of the Constitution of the Republic of
Lithuania, whether Item 2 of Paragraph 1 of Article 5 of the
same law was not in conflict with Paragraph 2 of Article 120 of
the Constitution of the Republic of Lithuania, whether the
provision "from among the members of the municipal council" of
Paragraph 1 of Article 18 of the same law was not in conflict
with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article
119 of the Constitution of the Republic of Lithuania, whether
Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the
same law were not in conflict with Paragraph 2 of Article 5 and
Paragraphs 1 and 4 of Article 119 of the Constitution of the
Republic of Lithuania, as well as whether the provisions of
Item 1 of Paragraph 1 of Article 21 of the same law which
regulate the activity of the mayor in the capacity of the head
of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15,
16, 17, and 18 of Paragraph 1 of the same article were not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
1. On 7 July 1994, the Seimas adopted the Republic of
Lithuania Law on Local Self-Government (Official Gazette
Valstybės žinios, 1994, No. 55-1049).
2. The articles (paragraphs and items thereof) of the Law
on Local Self-Government (wording of 7 July 1994) were amended,
supplemented and/or recognised as no longer valid by: the
Republic of Lithuania Law "On the Amendment of Article 7 of the
Republic of Lithuania Law on Local Self-Government" which was
adopted on 4 April 1995 by the Seimas (Official Gazette
Valstybės žinios, 1995, No. 30-683), the 5 July 1995 Republic
of Lithuania Law "On the Supplementation of the Republic of
Lithuania Law on Local Self-Government" (Official Gazette
Valstybės žinios, 1995, No. 59-1486), the 14 September 1995
Republic of Lithuania Law "On the Supplement of Article 19 of
the Republic of Lithuania Law on Local Self-Government"
(Official Gazette Valstybės žinios, 1995, No. 79-1820), the 14
March 1996 Republic of Lithuania Law on the Amendment of
Article 29 of the Law on Local Self-Government (Official
Gazette Valstybės žinios, 1996, No. 33-804), the 28 March 1996
Republic of Lithuania Law on the Amendment of Article 17 of the
Law on Local Self-Government (Official Gazette Valstybės
žinios, 1996, No. 35-869), the 7 May 1996 Republic of Lithuania
Law on the Amendment of Articles 15, 18 and 23 of the Law on
Local Self-Government (Official Gazette Valstybės žinios, 1996,
No. 50-1196), the 23 January 1997 Republic of Lithuania Law on
the Amendment and Supplement of Articles 12 and 26 of the Law
on Local Self-Government (Official Gazette Valstybės žinios,
1997, No. 11-206), the 25 February 1997 Republic of Lithuania
Law on the Amendment and Supplement of Articles 2, 5, 6, 7, 8,
9, 10, 15, 17, 18, 19, 26, and 28 of the Law on Local
Self-Government and Recognition of Article 30 Thereof as No
Longer Valid (Official Gazette Valstybės žinios, 1997, No.
20-446), the 3 June 1997 Republic of Lithuania Law on the
Supplement of Article 4 of the Law on Local Self-Government
(Official Gazette Valstybės žinios, 1997, No. 53-1228), the 24
June 1997 Republic of Lithuania Law on the Amendment of Article
16 of the Law on Local Self-Government (Official Gazette
Valstybės žinios, 1997, No. 62-1465), the 6 November 1997
Republic of Lithuania Law on the Amendment of Articles 5 and 18
of the Law on Local Self-Government (Official Gazette Valstybės
žinios, 1997, No. 106-2669), the 14 May 1998 Republic of
Lithuania Law on the Amendment and Supplement of Articles 7,
15, and 28 of the Law on Local Self-Government (Official
Gazette Valstybės žinios, 1998, No. 51-1393), the 17 November
1998 Republic of Lithuania Law on the Amendment and Supplement
of Articles 15 and 18 of the Law on Local Self-Government
(Official Gazette Valstybės žinios, 1998, No. 105-2900), and
the 24 November 1998 Republic of Lithuania Law on the Amendment
and Supplement of Articles 13 and 20 of the Law on Local
Self-Government (Official Gazette Valstybės žinios, 1998, No.
108-2955).
3. On 12 October 2000, the Seimas adopted the Republic of
Lithuania Law on the Amendment of the Law on Local
Self-Government (Official Gazette Valstybės žinios, 2000, No.
91-2832) by Article 1 whereof it amended the Law on Local
Self-Government (wording of 7 July 1994 with subsequent
amendments) and set it forth in a new wording.
4. The articles (paragraphs and items thereof) of the Law
on Local Self-Government (wording of 12 October 2000) were
amended and/or supplemented by: the Republic of Lithuania Law
on the Supplement of Articles 8, 20 and 31 of the Law on Local
Self-Government which was adopted on 5 July 2001 by the Seimas
(Official Gazette Valstybės žinios, 2001, No. 64-2323), the 2
August 2001 Republic of Lithuania Law on the Amendment of
Article 41 of the Law on Local Self-Government (Official
Gazette Valstybės žinios, 2001, No. 71-2515), the 25 September
2001 Republic of Lithuania Law on the Amendment and Supplement
of Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and 37 of the
Law on Local Self-Government (Official Gazette Valstybės
žinios, 2001, No. 85-2969), the 8 November 2001 Republic of
Lithuania Law on the Amendment of Articles 7 and 21 of the Law
on Local Self-Government (Official Gazette Valstybės žinios,
2001, No. 99-3519), the 10 December 2001 Republic of Lithuania
Law on the Amendment and Supplement of Articles 8, 17, 19, and
21 of the Law on Local Self-Government (Official Gazette
Valstybės žinios, 2001, No. 110-3984), the 28 March 2002
Republic of Lithuania Law on the Amendment of Article 1 of the
Law on the Amendment and Supplement of Articles 8, 17, 19, and
21 of the Law on Local Self-Government (Official Gazette
Valstybės žinios, 2002, No. 33-1256), the 9 April 2002 Republic
of Lithuania Law on the Amendment of Articles 6, 17, 19, and 26
of the Law on Local Self-Government (Official Gazette Valstybės
žinios, 2002, No. 43-1604), the 20 June 2002 Republic of
Lithuania Law on the Amendment and Supplement of Articles 3,
14, 18, 20, 25, 36, and 41 of the Law on Local Self-Government
(Official Gazette Valstybės žinios, 2002, No. 68-2765), the 24
September 2002 Republic of Lithuania Law on the Amendment and
Supplement of Articles 7 and 8 of the Law on Local
Self-Government (Official Gazette Valstybės žinios, 2002, No.
96-4171), and the 15 October 2002 Republic of Lithuania Law on
the Amendment and Supplement of Articles 17 and 21 of the Law
on Local Self-Government as well as the Supplement of Chapter
Thirteen Thereto (Official Gazette Valstybės žinios, 2002, No.
103-4605).
5. A group of Seimas members, the petitioner, requests to
investigate as to whether the notions "municipal institutions
and municipal control institutions" established in Paragraphs 3
and 4 of Article 3 of the Law on the Amendment of the Law on
Local Self-Government were not in conflict with Paragraphs 1, 3
and 4 of Article 119 of the Constitution, whether the provision
"the mayor of the municipality shall be an executive
institution" of Paragraph 3 of Article 3 of the same law was
not in conflict with Paragraph 2 of Article 5, Paragraphs 1 and
4 of Article 119 of the Constitution, whether Item 2 of
Paragraph 1 of Article 5 of the same law was not in conflict
with Paragraph 2 of Article 120 of the Constitution, whether
the provision "from among the members of the municipal council"
of Paragraph 1 of Article 18 of the same law was not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution, whether Items 2, 3, 4, 8,
and 15 of Paragraph 1 of Article 19 of the same law were not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution, as well as whether the
provisions of Item 1 of Paragraph 1 of Article 21 of the same
law which regulate the activity of the mayor in the capacity of
the head of the board of municipality, and Items 5, 6, 7, 9,
12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article
were not in conflict with Paragraph 2 of Article 5 and
Paragraphs 1 and 4 of Article 119 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. He maintains that Paragraph 3 of Article 3 of the Law
on the Amendment of the Law on Local Self-Government
establishes the notion "municipal institutions". According to
the petitioner, under Article 3 of the said law, municipal
institutions are the municipal council and the municipal board.
Paragraph 3 of Article 119 of the Constitution provides
that the procedure for the organisation and activities of
self-government institutions shall be established by law. Thus,
according to the petitioner, Paragraph 3 of Article 119 of the
Constitution employs the notion "self-government institutions"
but not that of "municipal institutions". The petitioner also
points out that it is established in Paragraph 1 of Article 119
of the Constitution that administrative units provided by law
on state territory shall be entitled to the right of
self-government and that this right shall be implemented
through respective municipal councils, while Paragraph 4 of
Article 119 of the Constitution provides that "municipal
councils shall form executive bodies which are accountable to
them". The petitioner maintains that neither the Constitution
nor the Law on the Amendment of the Law on Local
Self-Government provides for other municipal institutions.
In the opinion of the petitioner, the aforementioned law
ought to employ the notion employed by the Constitution, thus,
the municipal council and the municipal board must be referred
to as self-government institutions but not municipal
institutions.
Therefore, the petitioner has doubts whether the notion
"municipal institutions" established in Paragraph 3 of the Law
on the Amendment of the Law on Local Self-Government is not in
conflict with Paragraphs 1, 3 and 4 of Article 119 of the
Constitution.
2. The petitioner maintains that it is established in
Paragraph 1 of Article 5 of the 12 October 2000 Law on the
Amendment of the Law on Local Self-Government that, according
to the freedom of adoption of decisions, the functions of the
municipality are grouped into independent (Item 1) and assigned
(independent-limited) (Item 2) ones.
In the opinion of the petitioner, it might be possible to
regard the state functions of municipalities (those transferred
to municipalities) which are pointed out in Item 3 (but not in
Item 2) of Paragraph 1 of Article 5 of the Law on the Amendment
of the Law on Local Self-Government as independent-limited
municipal functions. Under Paragraph 7 of Article 36 of this
law, the funds designated for discharging of the state
functions (those transferred to municipalities) shall be
allocated from the state budget or from state monetary funds
and shall be transferred to municipalities as a special
grant-in-aid, meanwhile the independent functions of
municipalities shall be financed from independent municipal
budgets.
Paragraph 2 of Article 120 of the Constitution provides:
"Municipalities shall act freely and independently within their
competence, which shall be established by the Constitution and
laws."
In the opinion of the petitioner, municipalities discharge
freely and independently, while observing the Constitution, all
their functions defined in the Constitution and laws, thus,
functions of municipalities cannot be independent-limited.
Therefore, the petitioner has doubts whether Item 2 of
Paragraph 1 of Article 5 of the Law on the Amendment of the Law
on Local Self-Government is not in conflict with Paragraph 2 of
Article 120 of the Constitution.
3. The petitioner maintains that Paragraph 1 of Article 18
of the Law on the Amendment of the Law on Local Self-Government
provides that for the term of its powers, the municipal council
shall form a board from among the members of the municipal
council and establish the number of members of the board. Under
Paragraph 3 of Article 3 of the same law, the municipal board
shall be an executive institution.
According to the petitioner, under Paragraph 1 of Article
3 of the aforesaid law, the right of self-government guaranteed
by the Constitution is implemented through the municipal board
which, according to Paragraph 3 of the same article, has the
rights and duties of local power.
Paragraph 4 of Article 119 of the Constitution provides
that "for the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it".
In the opinion of the petitioner, it is the municipal
board that is the executive body of the municipality (a
self-government executive institution). The municipal board is
a different institution from the municipal council composed of
members of the municipal council, who are elected by the
residents. According to the petitioner, the municipal board may
not be formed from among members of the municipal council,
since these members of the municipal council would be
accountable and subordinate to themselves, while this would be
in conflict with the principles of separation of powers
(institutions), subordination and accountability, which are
established in the Constitution.
Therefore, the petitioner has doubts whether the provision
"from among the members of the municipal council" of Paragraph
1 of Article 18 of the Law on the Amendment of the Law on Local
Self-Government is not in conflict with Paragraph 2 of Article
5 and Paragraphs 1 and 4 of Article 119 of the Constitution.
4. The petitioner maintains that Items 2, 3, 4, 8, and 15
of Paragraph 1 of Article 19 of the Law on the Amendment of the
Law on Local Self-Government establish not the executive powers
to the municipal board (i.e. an executive institution) but the
powers of representative local power for the implementation of
the right of self-government and for the adoption of decisions
in the interests of the community. For instance, the petitioner
maintains that, under Item 8 of Paragraph 1 of Article 19 of
the aforesaid law, the municipal board "shall adopt decisions,
which are obligatory for the residents, on sanitation, public
health and environmental protection issues and shall publish
them in the press". Such powers, according to the petitioner,
may only be established for the municipal council.
Paragraph 1 of Article 119 of the Constitution provides
that the right of self-government shall be implemented through
corresponding municipal councils. Paragraph 4 of Article 119 of
the Constitution provides that "for the direct implementation
of the laws of the Republic of Lithuania, the decisions of the
Government and the municipal council, the municipal council
shall establish executive bodies accountable to it."
Thus, according to the petitioner, the powers of the
municipal board are limited by the Constitution; the municipal
board may only directly implement the decisions of the
municipal council, but it is not permitted to establish powers,
by law, to the municipal board to adopt decisions which are
obligatory for the community or to adopt decisions in the
interests of the community. In the opinion of the petitioner,
upon establishment of the said powers of the municipal board,
the powers of the municipal council provided for in Paragraph 1
of Article 119 of the Constitution are restricted, while the
powers of the municipal board provided for in Paragraph 4 of
Article 119 of the Constitution are broadened, Thus, the
provision of Paragraph 2 of Article 5 of the Constitution that
the scope of power shall be limited by the Constitution is
violated.
Thus, the petitioner has doubts as to whether Items 2, 3,
4, 8, and 15 of Paragraph 1 of Article 19 of the Law on the
Amendment of the Law on Local Self-Government are not in
conflict with of Paragraph 2 of Article 5 and Paragraphs 1 and
4 of Article 119 of the Constitution.
5. The petitioner maintains that Paragraph 3 of Article 3
of the Law on the Amendment of the Law on Local Self-Government
provides that "the mayor of the municipality shall be an
executive institution", also that Paragraph 3 of Article 3 and
Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1
of Article 21 of the same law establish the powers to the mayor
of the municipality to discharge the functions of the head of
three self-government institutions. First, the mayor of the
municipality heads the municipal council, a representative
self-government institution. Second, he heads the municipal
board, an executive self-government institution. Third, the
mayor himself is an executive institution. According to the
petitioner, Item 1 of Paragraph 1 of Article 21 of the said law
contains the following provisions regulating the activity of
the mayor of the municipality in the capacity of the head of
the municipal council: he determines and draws up agendas for
the municipal council and submits draft decisions, convenes
sittings of the municipal council and chairs them, coordinates
the activity of committees and commissions of the municipal
council, signs decisions of the municipal council and the
minutes of the sittings that he has chaired. These are the
functions of the mayor of the municipality in the capacity of
the head of the municipal council. In addition, the petitioner
points out that this as well as the other indicated items of
Paragraph 1 of Article 21 of the Law on the Amendment of the
Law on Local Self-Government establishes the functions of the
mayor of the municipality in the capacity of the head of board
of the municipality: he determines and draws up agendas for the
municipal board sittings and submits draft decisions, signs
decisions of the municipal board and the minutes of the
sittings that he has chaired (Item 1), administers municipal
grants-in-aid or empowers the administrator to do so (Item 6),
heads structural and structural-territorial units of the
municipality through the administrator of the municipality
(Item 7) etc.
The petitioner draws one's attention to the fact that
Paragraph 9 of Article 20 of the Law on the Amendment of the
Law on Local Self-Government provides that "the mayor or his
deputy may not work in any other institutions, establishments,
enterprises and organisations as well as receive any
remuneration other than the remuneration for scientific,
educational or creative activities".
Meanwhile, the petitioner assumes that under Items 1, 5,
6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article
21 of the Law on the Amendment of the Law on Local
Self-Government, the mayor of the municipality discharges the
functions of the head of three self-government institutions.
According to the petitioner, the fact that one person, the
mayor of the municipality, heads also an executive institution
(i.e. the municipal board) broadens his powers as the head of
local power (i.e. the municipal council).
The petitioner is of the opinion that the functions of the
municipal council (i.e. the representative institution) and the
municipal board (i.e. an executive institution) are separated
in Paragraphs 1 and 4 of Article 119 of the Constitution; the
principle of separation of powers is established in this
article of the Constitution. Paragraph 2 of Article 5 of the
Constitution provides that the scope of power shall be limited
by the Constitution.
Therefore, the petitioner has doubts as to whether the
provision "the mayor of the municipality shall be an executive
institution" of Paragraph 3 of Article 3 of the Law on the
Amendment of the Law on Local Self-Government, the provisions
of Item 1 of Paragraph 1 of Article 21 of the same law, which
regulate the activity of the mayor in the capacity of the head
of the municipal board, as well as Items 5, 6, 7, 9, 12, 14,
15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on
the Amendment of the Law on Local Self-Government are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
III
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
O. Buišienė, the representative of the party concerned.
1. The representative of the party concerned maintains
that, under Article 11 of the Constitution, the administrative
units of the territory of the State of Lithuania and their
boundaries shall be established by law. The notion of an
administrative unit of the territory of the state as well as
the organisation of administration in these parts of the
territory is defined in the Republic of Lithuania Law on the
Administrative Units of the Republic of Lithuania and their
Boundaries. Paragraph 1 of Article 2 of the said law provides
that the municipality is an administrative territorial unit of
the Republic of Lithuania, which is governed by self-government
institutions, elected by the local community pursuant to the
Republic of Lithuania Law on Local Self-Government.
The right of self-government of the municipality as an
administrative territorial unit is guaranteed by Article 119 of
the Constitution. O. Buišienė asserts that Paragraph 1 of the
aforementioned article establishes the procedure for the
formation of the right of self-government, i.e. it is
implemented through corresponding municipal councils, Paragraph
2 thereof establishes the procedure of the composition of the
councils as well as their term of powers, Paragraph 3 thereof
consolidates the organisational form of the implementation of
right of self-government of the administrative territorial unit
(municipality) and employs the general notion "institutions",
and Paragraph 4 thereof consolidates the formation of executive
bodies which are accountable to the councils. The
representative of the party concerned notes that the
legislator, while implementing the right to adopt laws, which
is granted to him by the Constitution, adopted the Law on Local
Self-Government, which regulates the implementation of the
right of self-government, defines the system of self-government
institutions established in the Constitution, and establishes
the procedure for the organisation and activities of municipal
institutions. O. Buišienė is of the opinion that the legislator
was consistent when he, while defining the notions of the
representative institution (council) and the executive
institutions (board and mayor), employed the same notion
"institutions".
The Constitution is an integral and directly applicable
act. The representative of the party concerned assumes that it
is impossible to assert on the grounds of Articles 10, 11, 119,
120, 121, 122, and 124 of the Constitution that the
municipality is an administrative territorial unit the
administration of which is organised through self-government
institutions, which are treated as certain local power bodies,
and which implement the right of self-government granted to
municipalities, administrative units of state territory
provided for by law. Since this right is implemented through
corresponding municipal councils, then the municipal council is
a self-government institution. The municipal board and the
mayor, which are formed by the municipal council and are
accountable to it are executive institutions, directly
implementing decisions of the council. Paragraph 4 of Paragraph
3 of the Law on Local Self-Government defines the control
institution of the municipality, which is the municipal
controller; his functions are related with the control of the
use of the municipal budget and the municipal inner audit, he
supervises the activity of municipal institutions but not the
implementation of the right of self-government. Therefore, the
control institution may not be named "self-government control
institution". In the opinion of O. Buišienė, the notions
established in Paragraphs 3 and 4 of Article 3 of the Law on
Local Self-Government are not in conflict with the
Constitution.
2. According to the representative of the party concerned,
local self-government is entrenched in the Constitution as the
system of public administration functioning on the grounds of
self-action, which is not directly subordinate to the
institutions of state power. It is possible to distinguish the
following constitutional principles of local self-government:
representative democracy, the accountability of executive
institutions to the representation, freedom and independence of
the activities of municipalities within the limits defined by
law, and coordination of the interests of the state and the
municipality.
Paragraph 2 of Article 120 of the Constitution provides
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws. Thus, the representative of the party
concerned notes that the freedom and independence of
municipalities are bound by their competence defined in the
Constitution and laws.
The competence and functions of municipalities are
established in Articles 5-9 of the Law on Local
Self-Government. The legislator, while defining the functions
of municipalities, differentiated them according to the
freedom, specific character and occurrence of grounds to adopt
decisions and grouped them into independent, assigned
(independent-limited), state (transferred to the
municipalities) and contractual. O. Buišienė draws one's
attention to the fact that, under Paragraph 2 of Article 4 of
the European Charter of Local Self-Government, local
authorities shall, within the limits of the law, have full
discretion to exercise their initiative with regard to any
matter which is not excluded from their competence nor assigned
to any other authority. The principle of the freedom and
independence of municipal activities within the limits defined
by law means precisely that the municipal activities may be
restricted only by the Constitution or the law but not any
bodies of central or regional power (save the cases provided
for in the law). Therefore, in the opinion of the
representative of the party concerned, there are no grounds to
maintain that Item 2 of Paragraph 1 of Article 5 of the Law on
Local Self-Government, which establishes the assigned
(independent-limited) municipal functions is in conflict with
Paragraph 2 of Article 120 of the Constitution.
3. The representative of the party concerned maintains
that Paragraph 1 of Article 5 of the Constitution, which
provides that in Lithuania, the Seimas, the President of the
Republic and the Government, and the Judiciary, shall execute
state power, establishes the principle of division and
separation of state powers. O. Buišienė asserts that the
principle of separation of state powers means that the
legislative, executive and judicial powers must be separated,
sufficiently independent, but also there must be a balance
among them; every state institution is attributed the
competence which corresponds to its purpose. Thus, the
principle of separation of state powers is revealed by the
constitutional provisions, which determine the competence of
state powers and their interrelations.
Meanwhile, according to the representative of the party
concerned, under Article 119 of the Constitution, local
self-government is implemented through elected and formed
institutions, besides, in municipalities the forms of direct
and representative democracy are coordinated. The system of
municipal institutions is independent, municipal institutions
are not state power bodies, and the principle of division and
separation of state powers is not applied to municipalities.
Paragraph 4 of Article 119 of the Constitution provides
that for the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it. The procedure for organisation and formation
of these bodies is established by the Law on Local
Self-Government. In the opinion of the representative of the
party concerned, the fact that under the law the municipal
board is formed and the mayor is elected from among the members
of a representative institution (the municipal council) is in
line with the Constitution.
4. According to O. Buišienė, under the Constitution, the
functions of municipalities ought to be implemented through
municipal councils, while the decisions adopted by the councils
ought to be implemented by the executive bodies (the board and
the mayor).
The representative of the party concerned assumes that the
powers granted to the board by Items 2, 3, 4, 8, and 15 of
Paragraph 1 of Article 19 of the Law on Local Self-Government
to adopt decisions on drafting various programmes, on the
distribution of funds to municipal establishments, on
determining the size of the rent for residential premises, on
the establishment of the number of offices of public servants
of political (personal) confidence, as well as the powers to
adopt compulsory decisions on sanitation, public health, and
environmental issues, are of executive nature. Therefore, in
the opinion of O. Buišienė, Items 2, 3, 4, 8, and 15 of
Paragraph 1 of Article 19 of the Law on Local Self-Government
are not in conflict with the Constitution.
5. The representative of the party concerned points out
that the powers of the mayor as an executive institution, which
are defined in Item 1 of Paragraph 1 of Article 21 of the Law
on Local Self-Government, are related with the organisation of
the activities of the representative and executive
institutions. The mayor of the municipality takes part in the
activities of both the representative and executive
institution. O. Buišienė asserts that the provision of
Paragraph 4 of Article 119 of the Constitution that the
municipal council shall establish executive bodies accountable
to it does not prohibit the mayor of the municipality, as a
member of the municipal representative body (council), from
participating in the activities of the municipal executive
body. As the division and separation of local power is not
entrenched in the Constitution, the participation of the mayor
in the activities of both the municipal council and the
municipal board is not in conflict with the principle of
division and separation of state powers, which is entrenched in
the Constitution. Therefore, the representative of the party
concerned assumes that there are no grounds to assert that the
provisions of Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government regulating the activity of the mayor in
the capacity of the head of the municipal board, also, Items 5,
6, 7, 9, 12, 14, 15, 16, 17, and 18 of the same article, as
well as the provision "the mayor shall be an executive
institution" of Paragraph 3 of Article 3 of the Law on Local
Self-Government are in conflict with the Constitution.
IV
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
J. Bernatonis, Minister of the Interior of the Republic of
Lithuania, A. Zuokas, Mayor of the Vilnius City Municipality,
S. Šiupšinskas, Director of the Lithuanian Association of
Municipalities, and A. Gazarianas, Director of the Centre for
Research of Self-Government Issues.
V
1. At the Constitutional Court hearing, P. Papovas, the
representative of the petitioner, virtually reiterated the
arguments set forth in his written explanations.
P. Papovas also explained that the petitioner challenges
not the compliance of the articles (paragraphs and items
thereof), pointed out by the petitioner, of the Law on the
Amendment of the Law on Local Self-Government which was adopted
on 12 October 2000, but that of respective articles (paragraphs
and items thereof) of the Law on Local Self-Government set
forth in a new wording of 12 October 2000 by Article 1 of the
Law on the Amendment of the Law on Local Self-Government.
2. At the Constitutional Court hearing, O. Buišienė, the
representative of the party concerned, virtually reiterated the
arguments set forth in her written explanations.
3. At the Constitutional Court hearing, B. Kleponis, the
specialist, an advisor to the Seimas Committee on State
Administration and Local Authorities, delivered his report.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate as to whether
the notions "local government institutions and municipal
control institutions" established in Paragraphs 3 and 4 of
Article 3 of the Law on the Amendment of the Law on Local
Self-Government are not in conflict with Paragraphs 1, 3 and 4
of Article 119 of the Constitution, whether the provision "the
mayor of the municipality shall be an executive institution" of
Paragraph 3 of Article 3 of the same law is not in conflict
with Paragraph 2 of Article 5, Paragraphs 1 and 4 of Article
119 of the Constitution, whether Item 2 of Paragraph 1 of
Article 5 of the same law is not in conflict with Paragraph 2
of Article 120 of the Constitution, whether the provision "from
among the members of the municipal council" of Paragraph 1 of
Article 18 of the same law is not in conflict with Paragraph 2
of Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1
of Article 19 of the same law are not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution, as well as whether the provisions of Item
1 of Paragraph 1 of Article 21 of the same law which regulate
the activity of the mayor in the capacity of the head of the
board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16,
17, and 18 of Paragraph 1 of the same article are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
2. There are three articles in the 12 October 2000 Law on
the Amendment of the Law on Local Self-Government. By Article 1
of the said law, the until then in effect Law on Local
Self-Government was amended and set forth in a new wording. It
is established in Article 2 of the Law on the Amendment of the
Law on Local Self-Government that, upon entry into force of
this law, the Republic of Lithuania Law on the Status of a
Member of the Municipal Council shall become no longer valid.
Article 3 of the Law on the Amendment of the Law on Local
Self-Government regulates the implementation of the said law.
Thus, the entire Law on Local Self-Government (all
articles, paragraphs and items thereof) of the new wording (12
October 2000) is set forth in Article 1 of the Law on the
Amendment of the Law on Local Self-Government.
Thus, Paragraphs 3 and 4 of Article 3, Item 2 of Paragraph
1 of Article 5, Paragraph 1 of Article 18, Items 2, 3, 4, 8,
and 15 of Paragraph 1 of Article 19, and Items 1, 5, 6, 7, 9,
12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 which
are pointed out by the petitioner are not articles (paragraphs
and items thereof) of the Law on the Amendment of the Law on
Local Self-Government adopted on 12 October 2000, but
corresponding articles (paragraphs and items thereof) of the
Law on Local Self-Government which was set forth in a new
wording (12 October 2000) in Article 1 of the Law on the
Amendment of the Law on Local Self-Government.
Therefore, the request of the petitioner to investigate as
to whether the notions "municipal institutions and municipal
control institutions" established in Paragraphs 3 and 4 of
Article 3 of the Law on the Amendment of the Law on Local
Self-Government are not in conflict with Paragraphs 1, 3 and 4
of Article 119 of the Constitution, whether the provision "the
mayor of the municipality shall be an executive institution" of
Paragraph 3 of Article 3 of the same law is not in conflict
with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article
119 of the Constitution, whether Item 2 of Paragraph 1 of
Article 5 of the same law is not in conflict with Paragraph 2
of Article 120 of the Constitution, whether the provision "from
among the members of the municipal council" of Paragraph 1 of
Article 18 of the same law is not in conflict with Paragraphs 1
and 4 of Article 119 and Paragraph 2 of Article 5 of the
Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1
of Article 19 of the same law are not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution, as well as whether the provisions of Item
1 of Paragraph 1 of Article 21 of the same law which regulate
the activity of the mayor in the capacity of the head of the
board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16,
17, and 18 of Paragraph 1 of the same article are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution is a request to investigate
as to whether the notions "municipal institutions and municipal
control institutions" established in Paragraphs 3 and 4 of
Article 3 of the Law on Local Self-Government (wording of 12
October 2000) are not in conflict with Paragraphs 1, 3 and 4 of
Article 119 of the Constitution, whether the provision "the
mayor of the municipality shall be an executive institution" of
Paragraph 3 of Article 3 of the same law is not in conflict
with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article
119 of the Constitution, whether Item 2 of Paragraph 1 of
Article 5 of the same law is not in conflict with Paragraph 2
of Article 120 of the Constitution, whether the provision "from
among the members of the municipal council" of Paragraph 1 of
Article 18 of the same law is not in conflict with Paragraph 2
of Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1
of Article 19 of the same law are not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution, as well as whether the provisions of Item
1 of Paragraph 1 of Article 21 of the same law which regulate
the activity of the mayor in the capacity of the head of the
board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16,
17, and 18 of Paragraph 1 of the same article are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
3. The petitioner requests to investigate as to whether
the notions "municipal institutions and municipal control
institutions" established in Paragraphs 3 and 4 of Article 3 of
the Law on Local Self-Government (wording of 12 October 2000)
are not in conflict with Paragraphs 1, 3 and 4 of Article 119
of the Constitution.
3.1. Article 3 of the Law on Local Self-Government
(wording of 12 October 2000) does not contain the notion
"municipal institutions and municipal control institutions".
Paragraph 3 of Article 3 of the said law defines the notion
"municipal institutions", while Paragraph 4 of the same article
defines the notion "the municipal control institution".
Thus, the petitioner requests to investigate as to whether
the notion "municipal institutions" defined in Paragraph 3 of
Article 3 of the Law on Local Self-Government (wording of 12
October 2000) and the notion "the municipal control
institution" defined in Paragraph 4 of the same article are not
in conflict with Paragraphs 1, 3 and 4 of Article 119 of the
Constitution.
3.2. The petitioner disputes the compliance of the notions
"municipal institutions" and "the municipal control
institution" which are respectively defined in Paragraphs 3 and
4 of Article 3 of the Law on Local Self-Government (wording of
12 October 2000) with Paragraphs 1, 3 and 4 of Article 119 of
the Constitution from the aspect that the said notions employ
the word "municipal" but not "self-government". In the opinion
of the petitioner, the same notion ought to be employed in
Paragraphs 3 and 4 of Article 3 of the said law as in Paragraph
3 of Article 119 of the Constitution, i.e. "self-government
institutions".
3.3. It is impossible to construe the words employed in a
notion while dissociating it from the definition of the notion:
a notion composed of certain words and its definition are an
indivisible whole. While investigating the latter, one has to
keep in mind the systematic links between the words, from which
the defined notion is composed, and the meanings of the
formulations of the definition of the said notion. It is
impossible to investigate the notion and/or its definition by
neglecting a certain word employed in the notion or any
formulation of the definition of the said notion.
Thus, one cannot investigate a notion defined in a legal
act (part thereof) by neglecting a certain word employed in the
notion or a formulation employed in the definition of the said
notion, as thereby the unity of corresponding legal regulation
would be ignored. Thus, it is possible to investigate the
compliance of a notion defined in a legal act with the
Constitution only investigating alongside the compliance of its
definition with the Constitution, i.e. by investigating whether
the whole, i.e. indivisible legal regulation, of the provisions
in which the definition of the said notion is formulated, is
not in conflict with the Constitution.
3.4. Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) defines the notion
"municipal institutions" as follows: "Municipal institutions
shall be a representative institution-municipal council, and
executive institutions-the municipal board (hereinafter
referred to as the Board) and the mayor of the municipality
(hereinafter referred to as the Mayor), which shall have the
rights and duties of local power and public administration.
Municipal institutions shall be responsible for the
implementation of the rights of self-government and their
functions in the interest of the community."
Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) defines the notion
"municipal institutions": (1) while listing municipal
institutions and grouping them: the municipal council is a
representative institution, meanwhile the municipal board and
the mayor of the municipality are executive institutions; (2)
while marking distinctive features of municipal institutions,
i.e. the features which make these institutions different from
other institutions: the rights and duties of local power and
public administration, responsibility for the implementation of
the right of self-government and their functions in the
interests of the community. Except for the notion "municipal
institutions" and its definition, Paragraph 3 of Article 3 of
the Law on Local Self-Government (wording of 12 October 2000)
does not establish any other legal regulation; the legal
regulation established in the said paragraph is indivisible; it
is possible to investigate the compliance of the notion
"municipal institutions" with the Constitution only alongside
investigating the compliance of all the rest of the provisions
of the said paragraph with the Constitution.
3.5. Paragraph 4 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) defines the notion
"the municipal control institution" as follows: "The municipal
control institution shall be the municipal controller, who
controls the use of the municipal budget and discharges the
functions of municipal inner audit."
Paragraph 4 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) defines the notion
"the municipal control institution": (1) while naming the
municipal control institution: the municipal controller; (2)
while marking distinctive features of the municipal control
institution, i.e. the features which makes this institution
different from other institutions: the control of the use of
the municipal budget, and discharging the functions of the
municipal inner audit. Except for the notion "the municipal
control institution" and its definition, Paragraph 4 of Article
3 of the Law on Local Self-Government (wording of 12 October
2000) does not establish any other legal regulation; the legal
regulation established in the said paragraph is indivisible; it
is possible to investigate the compliance of the notion "the
municipal control institution" with the Constitution only
alongside investigating the compliance of all the rest of the
provisions of the said paragraph with the Constitution.
3.6. Subsequent to the petition of the petitioner
requesting to investigate as to whether the notion "municipal
institutions" defined in Paragraph 3 of Article 3 of the Law on
Local Self-Government (wording of 12 October 2000) and the
notion "the municipal control institution" defined in Paragraph
4 of the same article are not in conflict with Paragraphs 1, 3,
and 4 of Article 119 of the Constitution, the Constitutional
Court will investigate as to whether Paragraphs 3 and 4 of
Article 3 of the aforementioned law are not in conflict with
Paragraphs 1, 3, and 4 of Article 119 of the Constitution.
4. The petitioner requests to investigate as to whether
the provision "the mayor of the municipality shall be an
executive institution" of Paragraph 3 of Article 3 of the Law
on Local Self-Government (wording of 12 October 2000) is not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
4.1. The petitioner disputes the compliance of Paragraph 3
of Article 3 of the Law on Local Self-Government (wording of 12
October 2000) with Paragraph 2 of Article 5 and Paragraphs 1
and 4 of Article 119 of the Constitution to the extent that
Paragraph 3 of Article 3 of the Law on Local Self-Government
(wording of 12 October 2000), according to the petitioner,
establishes to the mayor of the municipality the legal status
of not only the head of the municipal board but also that of a
municipal executive institution.
4.2. Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) does not contain
the formulation "the mayor of the municipality shall be an
executive institution", i.e. the provision disputed by the
petitioner that the mayor of the municipality shall be an
executive institution is not consolidated verbatim in the
manner formulated by the petitioner.
On the other hand, the notion "municipal institutions" of
Paragraph 3 of Article 3 of the Law on Local Self-Government
(wording of 12 October 2000) is defined by consolidating inter
alia that the mayor of the municipality, as well as the
municipal board, is one of executive municipal institutions.
Thus, the petitioner requests to investigate as to whether the
provision of Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) that the mayor of
the municipality is an executive municipal institution is not
in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and
4 of Article 119 of the Constitution.
4.3. It has been mentioned that subsequent to the petition
of the petitioner requesting to investigate as to whether the
notion "municipal institutions" defined in Paragraph 3 of
Article 3 of the Law on Local Self-Government (wording of 12
October 2000) and the notion "the municipal control
institution" defined in Paragraph 4 of the same article are not
in conflict with Paragraphs 1, 3, and 4 of Article 119 of the
Constitution, the Constitutional Court will investigate as to
whether Paragraphs 3 and 4 of Article 3 of the aforementioned
law are not in conflict with Paragraphs 1, 3, and 4 of Article
119 of the Constitution.
The petition of the petitioner requesting to investigate
as to whether the notion "municipal institutions" defined in
Paragraph 3 of Article 3 of the Law on Local Self-Government
(wording of 12 October 2000) is not in conflict with Paragraphs
1, 3, and 4 of Article 119 of the Constitution, and his
petition requesting to investigate as to whether the provision
of Paragraph 3 of Article 3 of the same law that the mayor of
the municipality is an executive municipal institution is not
in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and
4 of Article 119 of the Constitution are interrelated and
partly repeat each other: the definition of the notion
"municipal institutions" also includes the provision that the
mayor of the municipality is an executive municipal
institution. Thus, both aforesaid requests concern the same
matter, which is the compliance of Paragraph 3 of Article 3 of
the Law on Local Self-Government (wording of 12 October 2000)
with the Constitution.
On the other hand, the petitioner has doubts whether the
notion "municipal institutions" defined in Paragraph 3 of
Article 3 of the Law on Local Self-Government (wording of 12
October 2000) is not in conflict with Paragraphs 1, 3, and 4 of
Article 119 of the Constitution, and whether the provision of
the same paragraph that the mayor of the municipality is an
executive municipal institution is not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution.
4.4. Subsequent to the requests of the petitioner to
investigate as to whether the notion "municipal institutions"
defined in Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraphs 1, 3, and 4 of Article 119 of the Constitution,
and whether the provision of the same paragraph that the mayor
of the municipality is an executive municipal institution is
not in conflict with Paragraph 2 of Article 5 and Paragraphs 1
and 4 of Article 119 of the Constitution, the Constitutional
Court will investigate as to whether Paragraph 3 of Article 3
of the Law on Local Self-Government (wording of 12 October
2000) is not in conflict with Paragraph 2 of Article 5 and
Paragraphs 1, 3, and 4 of Article 119 of the Constitution.
5. The petitioner requests to investigate as to whether
the provisions of Item 1 of Paragraph 1 of Article 21 of the
Law on Local Self-Government (wording of 12 October 2000) which
regulate the activity of the mayor in the capacity of the head
of the board of municipality and Items 5, 6, 7, 9, 12, 14, 15,
16, 17, and 18 of Paragraph 1 of the same article are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
5.1. The doubt of the petitioner as to whether the
provisions of Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government (wording of 12 October 2000) which
regulate the activity of the mayor in the capacity of the head
of the board of municipality and Items 5, 6, 7, 9, 12, 14, 15,
16, 17, and 18 of Paragraph 1 of the same article are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution is based on the fact that,
according to the petitioner, Items 1, 5, 6, 7, 9, 12, 14, 15,
16, 17, and 18 of Paragraph 1 of Article 21 of the same law
provide for the powers for the mayor of the municipality to
head both the municipal council and the municipal board;
according to the petitioner, thereby the powers of the mayor as
the head of the municipal council are broadened. The request to
investigate as to whether the provisions of Item 1 of Paragraph
1 of Article 21 of the Law on Local Self-Government (wording of
12 October 2000) which regulate the activity of the mayor in
the capacity of the head of the board of municipality and Items
5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the
same article are not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution is
inseparable from the afore-discussed request to investigate as
to whether the provision of Paragraph 3 of Article 3 of the Law
on Local Self-Government (wording of 12 October 2000) that the
mayor of the municipality is an executive municipal institution
is not in conflict with Paragraph 2 of Article 5 and Paragraphs
1 and 4 of Article 119 of the Constitution.
5.2. Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government (wording of 12 October 2000) provides
that the mayor "shall determine and draw up agendas for the
municipal council and the municipal board sittings and submit
draft decisions, convene sittings of the municipal council and
chair them, coordinate the activity of committees and
commissions of the municipal council, sign decisions of the
municipal council and the municipal board and the minutes of
the sittings that he has chaired".
The petitioner disputes the compliance of Item 1 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 12 October 2000) with Paragraph 2 of Article 5 and
Paragraphs 1 and 4 of Article 119 of the Constitution to the
extent that the said item provides that the mayor determines
and draws up agendas for the municipal board sittings and
submits draft decisions, signs decisions of the municipal board
and the minutes of the sittings that he has chaired.
In order to determine whether Item 1 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) is not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution to
the extent that the said item provides that the mayor
determines and draws up agendas for the municipal board
sittings and submits draft decisions, signs decisions of the
municipal council and the minutes of the sittings that he has
chaired, it is necessary to investigate, first of all, whether
the provision of Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) that the mayor of
the municipality is an executive municipal institution is not
in conflict with the Constitution, also, whether the mayor of
the municipality is permitted, by the Constitution, to have
powers to head the municipal council and whether he is
permitted to have powers to head the municipal board. The
investigation of the compliance of the provisions of Item 1 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 12 October 2000) that that the mayor determines and
draws up agendas for the municipal board sittings and submits
draft decisions, signs decisions of the municipal board and the
minutes of the sittings that he has chaired with Paragraph 2 of
Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution is inseparable from the investigation into the
compliance of the provisions of the aforesaid item that the
mayor determines and draws up agendas for the municipal council
and submit draft decisions, convene sittings of the municipal
council and chair them, coordinate the activity of committees
and commissions of the municipal council, sign decisions of the
municipal council and the minutes of the sittings that he has
chaired, with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution. Therefore, while
determining whether Item 1 of Paragraph 1 of Article 21 of the
Law on Local Self-Government (wording of 12 October 2000) to
the extent disputed by the petitioner is not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution, one has to investigate the compliance of
the entire legal regulation established in the aforesaid item
with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article
119 of the Constitution.
5.3. According to the petitioner, disputed Items 5, 6, 7,
9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of
the Law on Local Self-Government (wording of 12 October 2000)
establish the functions of the mayor of the municipality in the
capacity of the head of the executive municipal institution.
Thus, the petitioner is of the opinion that these items of the
aforementioned law to their entire extent are in conflict with
the said articles (parts thereof) of the Constitution.
5.4. Subsequent to the request of the petitioner to
investigate as to whether the provisions of Item 1 of Paragraph
1 of Article 21 of the Law on Local Self-Government (wording of
12 October 2000) as well as Items 5, 6, 7, 9, 12, 14, 15, 16,
17, and 18 of the same article are not in conflict with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution, the Constitutional Court will investigate
as to whether Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18
of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution.
6. The petitioner requests to investigate as to whether
the provision "from among the members of the municipal council"
of Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article
119 of the Constitution.
6.1. Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000), the compliance of
the provision "from among the members of the municipal council"
whereof with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of
Article 119 of the Constitution is disputed by the petitioner,
provides: "For the term of its powers, the municipal council
shall form a board from among the members of the municipal
council and establish the number of members of the board."
6.2. The provision "from among the members of the
municipal council", which is pointed out by the petitioner is
the fragment of the legal regulation, which is inseparable from
the other provisions of Paragraph 1 of Article 18. It is
possible to elucidate the normative content of the disputed
provision only by investigating the said provision in the
context of the entire legal regulation established in Paragraph
1 of Article 18 of the Law on Local Self-Government (wording of
12 October 2000).
6.3. Subsequent to the request of the petitioner to
investigate as to whether the provision "from among the members
of the municipal council" of Paragraph 1 of Article 18 of the
Law on Local Self-Government (wording of 12 October 2000) is
not in conflict with Paragraph 2 of Article 5 and Paragraphs 1
and 4 of Article 119 of the Constitution, the Constitutional
Court will investigate as to whether Paragraph 1 of Article 18
of the said law is not in conflict with Paragraph 2 of Article
5 and Paragraphs 1 and 4 of Article 119 of the Constitution.
7. Items 6 and 14 of Paragraph 1 of Article 21 of the Law
on Local Self-Government (wording of 12 October 2000) were
amended by the 25 September 2001 Law on the Amendment and
Supplement of Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and
37 of the Law on Local Self-Government and the 8 November 2001
Law on the Amendment of Articles 7 and 21 of the Law on Local
Self-Government respectively.
7.1. On 25 September 2001, the Seimas adopted the Law on
the Amendment and Supplement of Articles 11, 15, 17, 21, 27,
28, 29, 30, 36, and 37 of the Law on Local Self-Government,
Article 4 whereof supplemented Item 6 of Paragraph 1 of Article
21 of the Law on Local Self-Government (wording of 12 October
2000) and established that the mayor "shall administer
municipal grants-in-aid, organise the execution of the
municipal budget and shall be responsible for the municipal
economic and financial activity, or shall empower the municipal
administrator to perform everything listed above."
Meanwhile, Item 6 of Paragraph 1 of Article 21 of the Law
on Local Self-Government (wording of 12 October 2000) the
compliance whereof with Paragraph 2 of Article 5 and Paragraphs
1 and 4 of Article 119 of the Constitution is disputed by the
petitioner, provided that the mayor "shall administer municipal
grants-in-aid or shall empower the municipal administrator to
do so".
While comparing the legal regulation established in Item 6
of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) with that
established in Item 6 of Paragraph 1 of Article 21 of the Law
on Local Self-Government (wording of 25 September 2001), it is
clear that the provisions that the mayor "shall administer
municipal grants-in-aid or shall empower the municipal
administrator to do so" provided for in Item 6 of Paragraph 1
of Article 21 of the Law on Local Self-Government (wording of
12 October 2000) also remained in Item 6 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 25
September 2001).
7.2. On 8 November 2001, the Seimas adopted the Law on the
Amendment of Articles 7 and 21 of the Law on Local
Self-Government, by Article 2 whereof Item 14 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) was amended and it was established that the mayor
"shall, under the procedure provided for in laws, issue briefs
of building design conditions, construction permits and shall
supervise the use of buildings, or shall empower, under the
established procedure, the municipal administrator or another
servant of the municipal administration to do so".
Meanwhile, Item 14 of Paragraph 1 of Article 21 of the Law
on Local Self-Government (wording of 12 October 2000) provided
that the mayor "shall, under the procedure provided for in
laws, issue briefs of building design conditions, organise
coordination of buildings' projects and issue permits to
construct, reconstruct, repair or demolish buildings, or shall
empower, under the established procedure, the municipal
administrator or another servant of the municipal
administration to do so".
While comparing the legal regulation established in Item
14 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 8 November 2001) with that
established in whereof Item 14 of Paragraph 1 of Article 21 of
the Law on Local Self-Government (wording of 12 October 2000),
it is clear that the provisions of Item 14 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000), which are disputed by the petitioner, that the
mayor "shall, under the procedure provided for in laws, issue
briefs of building design conditions, organise coordination of
buildings' projects and issue permits to construct,
reconstruct, repair or demolish buildings, or shall empower,
under the established procedure, the municipal administrator or
another servant of the municipal administration to do so", even
after certain formulations had been amended, virtually remained
in Item 14 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 8 November 2001).
8. In the case at issue, the Constitutional Court will
investigate:
1) whether Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraph 2 of Article 5 and Paragraphs 1, 3 and 4 of
Article 119 of the Constitution;
2) whether Paragraph 4 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraphs 1, 3 and 4 of Article 119 of the Constitution;
3) whether Item 2 of Paragraph 1 of Article 5 of the Law
on Local Self-Government (wording of 12 October 2000) is not in
conflict with Paragraph 2 of Article 120 of the Constitution;
4) whether Paragraph 1 of Article 18 (wording of 12
October 2000) and Items 2, 3, 4, 8, and 15 of Paragraph 1 of
Article 19 of the Law on Local Self-Government (wording of 12
October 2000) are not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution;
5) whether Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 12 October 2000), Item 6 of the same paragraph
(wordings of 12 October 2000 and 25 September 2001) and Item 14
of the same paragraph (wordings of 12 October 2000 and 8
November 2001) are not in conflict with Paragraph 2 of Article
5 and Paragraphs 1 and 4 of Article 119 of the Constitution.
II
1. While deciding whether Paragraphs 3 and 4 of Article 3
(wording of 12 October 2000), Item 2 of Paragraph 1 of Article
5 (wording of 12 October 2000), Paragraph 1 of Article 18
(wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of
Paragraph 1 of Article 19 (wording of 12 October 2000), Items
1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21
(wording of 12 October 2000), Item 6 of the same paragraph
(wordings of 12 October 2000 and 25 September 2001), and Item
14 of the same paragraph (wordings of 12 October 2000 and 8
November 2001) of the Law on Local Self-Government are not in
conflict with the Constitution, one has to elucidate the
concept of local self-government, which is entrenched in the
Constitution.
2. The constitutional bases of local self-government are
established in Chapter 10 of the Constitution, which is
entitled "Local Self-Government and Administration", as well as
in other provisions of the Constitution.
2.1. While interpreting the concept of local
self-government which is established in the Constitution, it
needs to be noted that, under Paragraph 1 of Article 119 of the
Constitution, the right of self-government shall be guaranteed
to the administrative units of state territory which are
provided for by law and it shall be implemented through
corresponding municipal councils; under Paragraph 2 of the same
article (wording of 20 June 2002), the members of the municipal
councils shall be elected for a four-year term, as provided for
by law, from among citizens of the Republic of Lithuania and
other permanent residents of the administrative unit by the
citizens of the Republic of Lithuania and other permanent
residents of the administrative unit, on the basis of
universal, equal and direct electoral right by secret ballot;
under Paragraph 3 of the same article, the procedure for the
organisation and activities of self-government institutions
shall be established by law; under Paragraph 4 of the same
article, for the direct implementation of the laws of the
Republic of Lithuania, the decisions of the Government and the
municipal council, the municipal council shall establish
executive bodies accountable to it.
Various aspects of the constitutional concept of
self-government are established not only in Article 119 of the
Constitution but also in the provisions of other articles of
the Constitution: the provision of Article 11 that the
administrative units of the territory of the State of Lithuania
and their boundaries shall be established by law; the provision
of Item 17 of Article 67 that the Seimas shall establish
administrative division of the Republic; the provision of
Paragraph 1 of Article 120 that the state shall support
municipalities; the provision of Paragraph 2 of the same
article, that municipalities shall act freely and independently
within their competence, which shall be established by the
Constitution and laws; the provision of Paragraph 1 of Article
121 that municipalities shall draft and confirm their own
budget; the provision of Paragraph 2 of the same article that
municipal councils shall have the right to establish local
levies within the limits and in accordance with the procedure
provided for by law, and that municipal councils may provide
for preferences with respect to taxes and levies at the expense
of their own budget; the provision of Article 122 that
municipal councils shall have the right to apply to court
regarding the violation of their rights; the provision of
Paragraph 2 of Article 123 that the observance of the
Constitution and the laws, as well as the execution of the
decisions of the Government by municipalities shall be
supervised by representatives appointed by the Government; the
provision of Paragraph 3 of the same article that the powers of
the Government representative and the procedure of their
execution shall be established by law; the provision of
Paragraph 4 of the same article that in cases and in accordance
with the procedure provided for by law, the Seimas may
temporarily introduce direct administration in the territory of
a municipality; the provision of Article 124 that acts and
deeds of municipal councils as well as of their executive
bodies and officials which violate the rights of citizens and
organisations may be appealed in court; the provision of
Paragraph 1 of Article 127 that the budgetary system of the
Republic of Lithuania shall consist of the independent State
Budget of the Republic of Lithuania as well as the independent
municipal budgets; the provision of Article 141 that persons
performing actual military service or alternative service, as
well as officers of the national defence system, of the police
and the Interior, non-commissioned officers, re-enlistees and
other paid officials of paramilitary and security services who
have not retired to the reserve may not be members of municipal
councils, etc.
2.2. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution).
The constitutional norms are interrelated and constitute an
indivisible and harmonious system. It is not permitted to
oppose a constitutional provision against other provisions of
the Constitution, or to construe it so that the essence of
other constitutional norms would be denied or distorted.
In its ruling of 13 June 2000, the Constitutional Court
held that it is impossible to interpret the norms set forth in
the articles (parts thereof) of the Constitution which were
pointed out by the petitioner by keeping them separate from
other norms of the Constitution, also, that the Constitutional
Court, after it has decided that the disputed act (part
thereof) conflicts with the articles (parts thereof) of the
Constitution which have not been pointed out by the petitioner,
is empowered to state so.
Therefore, the Constitutional Court, while investigating,
subsequent to the petition of the petitioner, whether the
disputed legal act (part thereof) is not in conflict with the
articles (parts thereof) of the Constitution pointed out by the
petitioner, alongside also investigates whether the said legal
act (part thereof) is not in conflict with the Constitution, an
indivisible and harmonious system.
3. At the time of the adoption of the Law on Local
Self-Government, Article 119 of the Constitution was set forth
in the wording of 12 December 1996:
"The right of self-government shall be guaranteed to the
administrative units of State territory which are provided for
by law. It shall be implemented through corresponding municipal
councils.
The members of the municipal councils shall be elected for
a three-year term by permanent residents of the administrative
unit who are citizens of the Republic of Lithuania, on the
basis of universal, equal and direct electoral right by secret
ballot.
The procedure for the organisation and activities of
self-government institutions shall be established by law.
For the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it."
4. On 20 June 2002, the Seimas adopted the Law on the
Alteration of Article 119 of the Constitution (Official Gazette
Valstybės žinios, 2002, No. 65-2629), by Article 1 whereof
Paragraph 2 of Article 119 of the Constitution was amended and
set forth as follows: "The members of the municipal councils
shall be elected for a four-year term, as provided for by law,
from among citizens of the Republic of Lithuania and other
permanent residents of the administrative unit by the citizens
of the Republic of Lithuania and other permanent residents of
the administrative unit, on the basis of universal, equal and
direct electoral right by secret ballot."
5. While comparing the legal regulation established in
Paragraph 2 of Article 119 of the Constitution (wording of 20
June 2002) with that of Paragraph 2 of Article 119 of the
Constitution (wording of 12 December 1996), one can notice that
the following amendments have been made: (1) members of
municipal councils are elected for a four- but not three-year
term of office; (2) not only citizens of the Republic of
Lithuania enjoy the active electoral right but also citizens of
other states and persons without citizenship in the election of
members of municipal councils; (3) the enjoyment of the active
electoral right in the election of members of municipal
councils is linked with a legal fact, i.e. permanent residence
of the person in a corresponding administrative unit; (4) not
only citizens of the Republic of Lithuania enjoy the passive
electoral right but also citizens of other states and persons
without citizenship in the election of members of municipal
councils; (5) the enjoyment of the passive electoral right in
the election of members of municipal councils is linked with a
legal fact, i.e. permanent residence of the person in a
corresponding administrative unit.
6. It needs to be noted that it is impossible to construe
Paragraphs 1, 3 and 4 of Article 119 of the Constitution, which
have been pointed out by the petitioner, separately from
Paragraph 2 of the same article, as well as the other articles
(parts thereof) of the Constitution, in which the concept of
local self-government is entrenched.
7. On the same day when the Law on the Alteration of
Article 119 of the Constitution was adopted, the Seimas adopted
the Republic of Lithuania Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution (Official Gazette Valstybės žinios, 2002,
No. 65-2630). Article 1, entitled "The Procedure of the Entry
into Effect of this Law" of the latter law, provided: "The
provision of Article 1 of the Republic of Lithuania Law on the
Alteration of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
shall be applicable as of the day of the entry into effect of
the Seimas resolution, which will appoint the second election
of municipal councils for a four-year term of office."
On 20 June 2002, the Seimas also adopted the Republic of
Lithuania Law on the Entering into the List of Constitutional
Laws of the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution (Official Gazette Valstybės žinios, No. 65-6231),
Article 1 whereof provided: "The Seimas of the Republic of
Lithuania, pursuant to the Third Paragraph of Article 69 of the
Constitution of the Republic of Lithuania, enters the Republic
of Lithuania Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution into the List of Constitutional Laws."
8. When interpreting the constitutional concept of local
self-government, one is to pay heed to the fact that under
Article 1 entitled "The Procedure of the Entry into Effect of
this Law" of the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution, which was adopted on the same day as the Law on
the Alteration of Article 119 of the Constitution, the
provision of the Law on the Alteration of Article 119 of the
Constitution concerning the participation, under the law, of
other permanent residents of the administrative unit in the
elections of municipal councils becomes applicable as of the
day of the entry into effect of the Seimas resolution, which
will appoint the second election of municipal councils for a
four-year term of office. Such legal regulation established in
the said constitutional law means that the constitutional
novels providing that not only citizens of the Republic of
Lithuania enjoy the active and passive electoral right but
other persons who are permanent residents of the administrative
unit (citizens of other states and persons without citizenship
in the election of members of municipal councils), are treated
as non-valid and non-applicable until the Seimas adopts a
resolution which will appoint the second election of municipal
councils for a four-year term of office, and until the said
resolution goes into effect.
Therefore, while construing the constitutional concept of
local self-government, it is necessary to define as to what
extent Paragraph 2 of Article 119 of the Constitution is valid
and applicable at present.
9. Paragraph 1 of Article 149 of the Constitution provides
that the President of the Republic shall sign the adopted law
on an alteration of the Constitution and officially promulgate
it within 5 days. Paragraph 2 of the same article provides
that, if the President of the Republic does not sign and
promulgate such a law during the indicated time, this law shall
come into effect when the President of the Seimas signs and
promulgates it. The Constitution does not provide that the
President of the Republic has the right of delayed veto in
connection with laws passed by referendum or in connection with
laws amending the Constitution (Constitutional Court ruling of
19 June 2002).
Under Paragraph 3 of Article 149 of the Constitution, the
law on an alteration of the Constitution shall come into effect
not earlier than one month after the adoption thereof.
Thus, under Paragraph 3 of Article 149 of the
Constitution, the Seimas may establish the date of the entry
into effect of the law on the alteration of the Constitution in
the law on the alteration of the Constitution, however, it is
not permitted that the said date be established earlier than
one month as of the day of the adoption of the law on the
alteration of the Constitution. While adopting the law on the
alteration of the Constitution, the Seimas may establish the
date of the entry into effect of the said law, which begins
only after one month expires after such a law on the alteration
of the Constitution is adopted. If the law on the alteration of
the Constitution does not establish the date of the entry into
effect of the law on the alteration of the Constitution, then,
under the Constitution, such a law on the alteration of the
Constitution goes into effect after one month expires after the
said law is adopted.
The norm whereby the date of the entry into effect of the
law on the alteration of the Constitution is established must
have the constitutional power and cannot not be the norm of the
Constitution itself; under the Constitution, it is not
permitted that the date of the entry into effect of the law on
the alteration of the Constitution be established by a legal
act of lower power. It needs to be noted that the date of the
commencement of the entry into effect of a legal act and the
date of the commencement of application of its particular norms
need not necessarily coincide: it may be established that
certain provisions of the legal act are applicable from another
(later) date. This may not be established by a legal act of
lower power than the Constitution, as, thus, the hierarchy of
legal acts established in the Constitution and the supremacy of
the Constitution would be violated.
Thus, the fact that certain provisions of the Constitution
are applicable not from the moment of their entry into effect,
but from another (later) date, must be established expressis
verbis in the law on the alteration of the Constitution.
Thus, if the law on the alteration of the Constitution
does not establish another (later) date of the commencement of
the application of its certain provisions, the said law on the
alteration of the Constitution (its all provisions) must be
applied as of the day of its entry into effect. It means that
as of the said day in question a corresponding amendment (its
all provisions) to the Constitution must be applied.
10. The Law on the Alteration of Article 119 of the
Constitution, whereby Paragraph 2 of Article 119 of the
Constitution was altered and set forth in a new wording, does
not provide for the date of its entry into effect. Thus, the
said law went into effect after one month had expired from its
adoption, i.e. it came into effect on 21 July 2002. Thus, as of
the said day, a corresponding amendment to Paragraph 2 of
Article 119 of the Constitution became effective.
Neither the Law on the Alteration of Article 119 of the
Constitution, nor any other part of the Constitution, provides
that upon the entry into effect of the Law on the Alteration of
Article 119 of the Constitution certain provisions of Paragraph
2 of Article 119 of the Constitution are not applicable or that
they are applicable as of another (later) date. Thus, all these
provisions must be applied as of the day when the amendment to
Paragraph 2 of Article 119 of the Constitution went into
effect, i.e. as of 21 July 2002.
11. Paragraph 3 of Article 69 of the Constitution
provides: "Constitutional laws of the Republic of Lithuania
shall be adopted if more than half of all the members of the
Seimas vote in favour thereof, while they shall be altered by
not less than a 3/5 majority vote of all the members of the
Seimas. The Seimas shall establish a list of constitutional
laws by a 3/5 majority vote of the members of the Seimas."
11.1. In its ruling of 2 April 2001, the Constitutional
Court held that constitutional laws differ from other laws by
the procedure of their adoption and amendment. The special
place of constitutional laws in the system of legal acts is
determined by the Constitution itself. Constitutional laws may
not be amended or abolished by laws. Thus, it is ensured that
the social relations regulated by constitutional laws be not
regulated in a different manner and that greater stability of
the social relations regulated by constitutional laws be
guaranteed. Constitutional laws may not conflict with the
Constitution, while laws may not conflict with the Constitution
and constitutional laws.
Thus, in the hierarchy of legal acts, constitutional laws
have lower power than the Constitution itself. The
constitutional law may not restrict the power of the
Constitution or its certain provisions, such a law may not
establish inter alia the legal regulation which would restrict
or deny an opportunity to directly apply the Constitution.
11.2. While construing the legal regulation established in
Paragraph 3 of Article 69 of the Constitution, the
Constitutional Court held in its ruling of 8 November 1993 that
only upon the confirmation, under the procedure established in
the said paragraph, of the list of constitutional laws, the
laws entered into the aforesaid list might be treated as
constitutional laws, and the rule of their enactment by the
qualified majority of votes, which is established in the
Constitution, would have to be applied only to these laws. In
the absence of such a list of constitutional laws, the
aforesaid procedure of adoption of constitutional laws may not
be applied to the adoption of any law, except the law on the
establishment of the list of constitutional laws.
Due to the fact that, under the Constitution,
constitutional laws may not be altered or abolished by
non-constitutional (i.e. common laws), also due to the fact
that laws cannot be in conflict with the Constitution and
constitutional laws, the list of constitutional laws may, under
the Constitution, be established by a constitutional law only.
According to Paragraph 3 of Article 69 of the Constitution,
such a constitutional law must be adopted by a 3/5 majority
vote of all the members of the Seimas.
In its ruling of 22 December 1994, the Constitutional
Court held that the Constitution does not prescribe another
procedure for the establishment of constitutional laws, save
that established in Article 69 of the Constitution.
11.3. The concept of constitutional laws entrenched in the
Constitution changed upon the adoption of the Republic of
Lithuania Law on the Alteration of Article 47 of the
Constitution (Official Gazette Valstybės žinios, 1996, No.
64-1501) by Article 1 whereof Paragraph 2 of Article 47 of the
Constitution was amended and set forth as follows:
"Municipalities and other national entities, as well as those
foreign entities conducting economic activities in Lithuania
that are specified by the constitutional law according to the
criteria of European and Transatlantic integration, may be
permitted to acquire the ownership of non-agricultural land
plots required for the construction and operation of buildings
and facilities necessary for their direct activities. The
procedure, conditions, and restrictions for the acquisition of
the ownership of such a plot shall be established by a
constitutional law."
Thus, in Paragraph 2 of Article 47 of the Constitution it
is entrenched expressis verbis that certain relations indicated
in the said paragraph are to be regulated by a constitutional
law.
In its ruling of 2 April 2001, the Constitutional Court
held that, under the Constitution, constitutional laws are ones
which are directly referred to as such in the Constitution and
are adopted pursuant to the procedure established in Paragraph
3 of Article 69 of the Constitution, as well as the laws
entered into the list of constitutional laws and adopted
pursuant to the procedure established in Paragraph 3 of Article
69 of the Constitution.
The fact that certain constitutional laws may be pointed
out directly in the Constitution, presupposes the
constitutional duty of the Seimas to adopt these laws by paying
heed to the requirement established in Paragraph 3 of Article
69 of the Constitution that they may be adopted if more than
half of all the members of the Seimas vote in favour thereof
and that they may be altered by not less than a 3/5 majority
vote of all the members of the Seimas.
11.4. It needs to be noted that the Seimas has not adopted
a constitutional law yet, whereby the list of constitutional
laws is established. According to the Constitution, as long as
the constitutional law establishing the list of constitutional
laws is not adopted, the Seimas does not have any powers to
adopt any constitutional law, unless such a constitutional law
is indicated in the Constitution itself, or unless this is the
constitutional law whereby the list of constitutional laws is
established.
11.5. It has been mentioned that it is established in
Article 1 entitled "The Procedure of the Entry into Effect of
this Law" of the Law on the Entering into the List of
Constitutional Laws of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution that the Seimas of the Republic of
Lithuania, pursuant to Paragraph 3 of Article 69 of the
Constitution of the Republic of Lithuania, enters the Republic
of Lithuania Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution into the List of Constitutional Laws.
However, the constitutional concept of constitutional laws
implies that, as it has been held in this Ruling of the
Constitutional Court, as long as the constitutional law
establishing the list of constitutional laws is not adopted,
the Seimas does not have any powers to adopt any constitutional
law, unless such a constitutional law is indicated in the
Constitution itself, or unless this is the constitutional law
whereby the list of constitutional laws is established.
It needs to be noted that the Seimas adopted the Law on
the Entering into the List of Constitutional Laws of the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution after
it had adopted the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution, even though the constitutional concept of
constitutional laws implies that only the constitutional laws
entered into the list of constitutional laws, save directly
indicated in the Constitution itself and the constitutional
law, which established the list of constitutional laws, may be
treated as constitutional laws, and the rules established in
Paragraph 3 of Article 69 of the Constitution may be applied to
the adoption of only such laws.
It has been held in this Ruling of the Constitutional
Court that the Seimas has not adopted a constitutional law yet,
which would establish the list of constitutional laws.
Thus, under the Constitution, the Seimas did not have any
powers to adopt the Law on the Entering into the List of
Constitutional Laws of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution. The entering of the Constitutional Law on
the Procedure of the Application of the Law on the Alteration
of Article 119 of the Constitution, as provided in Article 1
thereof, into the list of constitutional laws is null.
Alongside, one is to hold that, under the Constitution,
the Seimas did not have any powers to adopt the Constitutional
Law on the Procedure of the Application of the Law on the
Alteration of Article 119 of the Constitution either, as it had
not been entered into the list of constitutional laws, which,
under the requirements of the Constitution, must be established
by a constitutional law adopted by a 3/5 majority vote of the
members of the Seimas.
11.6. Taking account of the arguments set forth, one is to
hold that both said legal acts, i.e. the Law on the Entering
into the List of Constitutional Laws of the Constitutional Law
on the Procedure of the Application of the Law on the
Alteration of Article 119 of the Constitution and the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution,
according to the procedure of their adoption are not in line
with the requirements of Paragraph 3 of Article 69 of the
Constitution.
12. It has been mentioned that Article 1 entitled "The
Procedure of the Entry into Effect of this Law" of the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution
provides that the provision concerning the participation, under
the law, of other permanent residents of the administrative
unit in the elections of municipal councils shall be applicable
as of the day of the entry into effect of the Seimas
resolution, which will appoint the second election of municipal
councils for a four-year term of office.
12.1. It needs to be noted that although Article 1 of the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution is
entitled "The Procedure of the Entry into Effect of this Law",
it establishes the date of the commencement of the application
of the provision of Article 1 of the said law concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils,
but not the date of the commencement of the application of the
Law on the Alteration of Article 119 of the Constitution. The
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution does
not establish another date of the entry into effect of the Law
on the Alteration of Article 119 of the Constitution than
follows from the Constitution itself. Taking account of the
legal regulation established in the said article, this, in
itself, does not imply that the requirement established in
Paragraph 3 of Article 149 of the Constitution that the law on
an alteration of the Constitution shall come into effect not
earlier than one month after the adoption thereof, has been
violated.
12.2. According to Article 1 entitled "The Procedure of
the Entry into Effect of this Law" of the Constitutional Law on
the Procedure of the Application of the Law on the Alteration
of Article 119 of the Constitution, Paragraph 2 of Article 119
of the Constitution, even after it has gone into effect, is
applied not to its full extent: the provisions of Paragraph 2
of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
until the entry into effect of the Seimas resolution, which
will appoint the second election of municipal councils for a
four-year term of office, are not applied. By Article 1 of the
aforementioned constitutional law, the application of the
provisions of Paragraph 2 of Article 119 of the Constitution
concerning the participation, under the law, of other permanent
residents of the administrative unit in the elections of
municipal councils is made dependent on the entry into effect
of the Seimas resolution, which will appoint the second
election of municipal councils for a four-year term of office,
Thus, preconditions have been created to interfere into the
constitutional regulation by the said Seimas resolution.
Thus, Article 1 entitled "The Procedure of the Entry into
Effect of this Law" of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution establishes another (later) date of the
commencement of the application of the provisions of Paragraph
2 of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
than that which follows from the Constitution itself.
After Article 1 entitled "The Procedure of the Entry into
Effect of this Law" of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution had established another (later) date of the
commencement of the application of the provisions of Paragraph
2 of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
than that which follows from the Constitution itself, the legal
regulation established in Paragraph 2 of Article 119 of the
Constitution was disregarded.
13. Paragraph 1 of Article 6 of the Constitution provides:
"The Constitution shall be an integral and directly applicable
act."
13.1. The discretion of the legislator to pass laws,
including those in which the procedure of the application of
the provisions of the Constitution is regulated, is limited by
the Constitution; the legislator must pay heed to the norms and
principles of the Constitution.
Thus, under the Constitution, the legislator does not have
the right to establish the legal regulation which might
restrict or deny the opportunity to directly apply the
Constitution.
13.2. It has been mentioned that, according to Article 1
entitled "The Procedure of the Entry into Effect of this Law"
of the Constitutional Law on the Procedure of the Application
of the Law on the Alteration of Article 119 of the
Constitution, Paragraph 2 of Article 119 of the Constitution,
even after it has gone into effect, is applied not to its full
extent (the provisions of Paragraph 2 of Article 119 of the
Constitution concerning the participation, under the law, of
other permanent residents of the administrative unit in the
elections of municipal councils until the entry into effect of
the Seimas resolution, which will appoint the second election
of municipal councils for a four-year term of office, are not
applied), also, that Article 1 of the said constitutional law
establishes another (later) date of the commencement of the
application of these provisions than that which follows from
the Constitution itself.
Under the Constitution, it was not permitted to establish
in the Constitutional Law on the Procedure of the Application
of the Law on the Alteration of Article 119 of the Constitution
the date of the commencement of the application of the
provisions of the Law on the Alteration of Article 119 of the
Constitution other than that which follows from the
Constitution itself, as thereby the provision of Paragraph 1 of
Article 6 of the Constitution that the Constitution shall be an
integral and directly applicable act would be violated.
By establishing by Article 1 entitled "The Procedure of
the Entry into Effect of this Law" of the Constitutional Law on
the Procedure of the Application of the Law on the Alteration
of Article 119 of the Constitution that until the day of the
entry into effect of the Seimas resolution, which will appoint
the second election of municipal councils for a four-year term
of office, the provisions of Paragraph 2 of Article 119 of the
Constitution concerning the participation, under the law, of
other permanent residents of the administrative unit in the
elections of municipal councils shall not be applicable, and
upon the establishment of another (later) date of the
commencement of the application of the provisions of Paragraph
2 of Article 119 of the Constitution than that following from
the Constitution, one disregards the provision of Paragraph 1
of Article 6 of the Constitution that the Constitution shall be
an integral and directly applicable act.
14. The principle of the supremacy of the Constitution is
a fundamental requirement of a democratic state under the rule
of law.
14.1. The principle of the supremacy of the Constitution
is entrenched in Paragraph 1 of Article 7 of the Constitution
which provides that any law or other act, which is inconsistent
with the Constitution, shall be invalid; the same principle is
also entrenched in various aspects in Paragraph 2 of Article 5
of the Constitution which provides that the scope of power
shall be limited by the Constitution, Paragraph 1 of Article 6
which provides that the Constitution shall be an integral and
directly applicable act, Paragraph 2 of Article 6 which
provides that everyone may defend his rights on the grounds of
the Constitution, Paragraph 1 of Article 30 which provides that
the person whose constitutional rights or freedoms are violated
shall have the right to apply to court, Paragraph 1 of Article
102 which provides that the Constitutional Court shall decide
whether the laws and other acts of the Seimas are not in
conflict with the Constitution and whether acts of the
President of the Republic and the Government are not in
conflict with the Constitution or laws, Paragraph 1 of Article
110 which provides that a judge may not apply a law, which is
in conflict with the Constitution, etc.
The principle of the supremacy of the Constitution means
that the Constitution rests in the exceptional, highest, place
in the hierarchy of legal acts, that no legal act may be in
conflict with the Constitution, that no one is permitted to
violate the Constitution, that the constitutional order must be
protected, that the Constitution itself consolidates the
mechanism permitting to determine whether legal acts (parts
thereof) are not in conflict with the Constitution. In this
respect, the principle of the supremacy of the Constitution,
which is established in the Constitution, is inseparably linked
with the constitutional principle of a state under the rule of
law, which is a universal constitutional principle upon which
the entire Lithuanian legal system and the Constitution itself
are based. Violation of the principle of the supremacy of the
Constitution would mean that the constitutional principle of a
state under the rule of law is violated as well.
14.2. Under the Constitution, it was not permitted to
establish in the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution the date of the commencement of the application of
the provisions of the Law on the Alteration of Article 119 of
the Constitution other than that which follows from the
Constitution itself, as thereby the principle of the supremacy
of the Constitution and the constitutional principle of a state
under the rule of law would be violated.
It has been held in this Ruling of the Constitutional
Court that according to Article 1 entitled "The Procedure of
the Entry into Effect of this Law" of the Constitutional Law on
the Procedure of the Application of the Law on the Alteration
of Article 119 of the Constitution, Paragraph 2 of Article 119
of the Constitution, even after it has gone into effect, is
applied not to its full extent (the provisions of Paragraph 2
of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
until the entry into effect of the Seimas resolution, which
will appoint the second election of municipal councils for a
four-year term of office, are not applied), also, that Article
1 of the said constitutional law establishes another (later)
date of the commencement of the application of these provisions
than that which follows from the Constitution itself. It has
also been held that by the legal regulation established in
Article 1 entitled "The Procedure of the Entry into Effect of
this Law" of the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution preconditions were created to interfere into the
constitutional regulation by the Seimas resolution, which will
appoint the second election of municipal councils for a
four-year term of office.
After Article 1 entitled "The Procedure of the Entry into
Effect of this Law" of the Constitutional Law on the Procedure
of the Application of the Law on the Alteration of Article 119
of the Constitution had established that the provisions of
Paragraph 2 of Article 119 of the Constitution concerning the
participation, under the law, of other permanent residents of
the administrative unit in the elections of municipal councils
shall not be applied until the entry into effect of the Seimas
resolution, which will appoint the second election of municipal
councils for a four-year term of office, and after one had
established another (later) date of the commencement of the
application of these constitutional provisions, one disregarded
the principle of the supremacy of the Constitution and the
constitutional principle of a state under the rule of law.
15. The Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution contains only said Article 1 entitled "The
Procedure of the Entry into Effect of this Law". Thus, the
conclusions on the compliance of Article 1 of the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution with
the Constitution are conclusions concerning the compliance of
this entire constitutional law with the Constitution.
16. Taking account of the arguments set forth, one is to
conclude that:
1) the Law on the Entering into the List of Constitutional
Laws of the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution is in conflict with Paragraph 3 of Article 69 of
the Constitution according to the procedure of its adoption;
2) the Constitutional Law on the Procedure of the
Application of the Law on the Alteration of Article 119 of the
Constitution is in conflict with Paragraph 1 of Article 6,
Paragraph 2 of Article 119 of the Constitution and the
principle of the supremacy of the Constitution which is
entrenched in the Constitution as well as the constitutional
principle of a state under the rule of law, while under the
procedure of its adoption it is in conflict with Paragraph 3 of
Article 69 of the Constitution.
17. It has been mentioned that the constitutional bases of
local self-government are established in Chapter 10 of the
Constitution, which is entitled "Local Self-Government and
Administration", as well as in other provisions of the
Constitution.
While construing, in a systematic manner, the said
provisions of the Constitution as well as the provisions
thereof in which the constitutional bases of functioning of
state power are established, it becomes clear that the
Constitution distinguishes two systems of public authority:
state administration and local self-government.
17.1. Under Article 11 and Item 17 of Article 67 of the
Constitution, the Seimas establishes the administrative units
of the territory of the State of Lithuania and their boundaries
by law. In higher level administrative units, the
administration shall be organised by the Government in
accordance with the procedure established by law (Paragraph 1
of Article 123 of the Constitution), while the right of
self-government shall be guaranteed to the administrative units
of state territory which are provided for by law (Paragraph 1
of Article 119 of the Constitution). Under the Constitution,
local self-government is self-regulation and self-action of the
communities of the administrative units of state territory, in
accordance with the competence defined by the Constitution and
laws, which are provided for by law (i.e. territorial or local
communities), and which are composed of permanent residents of
these units (citizens of the Republic of Lithuania and other
permanent residents). The said territorial communities are an
entity of self-government law and are referred to in the
Constitution as municipalities (or local municipalities).
Thus, a municipality is the community of an administrative
unit of state territory which enjoys the right to
self-government guaranteed by the Constitution. In its ruling
of 18 February 1998, the Constitutional Court held that the
Constitution determines local self-government as a local public
administration system operating on the basis of self-action
principles, which is not directly subordinate to state power
institutions. The system of municipalities is decentralised.
The provision of the Constitution that municipalities
shall act freely and independently within their competence,
which shall be established by the Constitution and laws, is to
be assessed as the guarantee of the participation of these
communities in the administration of these territories
(Constitutional Court ruling of 28 June 2001).
17.2. Local self-government is the power of territorial
communities of administrative units that are provided for by
law, which is formed and functions on other constitutional
grounds than state power. The Constitution does not identify
self-government with state administration (Constitutional Court
ruling of 14 January 2002). State administration and local
self-government, as two systems of implementation of public
power, are related, however, each of them implements the
functions which are characteristic to it only.
The independence of municipalities and freedom of their
activities within the competence limited by the Constitution
and laws are constitutional principles. In its ruling of 13
June 2000, the Constitutional Court held that the norm of
Paragraph 2 of Article 120 of the Constitution that
municipalities shall act freely and independently may not be
kept separate from the provision established in the same
paragraph of the same article that the freedom and independence
of municipalities are bound by the competence established by
the Constitution and laws.
Paragraph 2 of Article 120 of the Constitution provides
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws. Under the Constitution, it is not
permitted to establish the legal regulation whereby the
opportunity for municipalities to realise their competence
directly established in the Constitution would be denied.
The constitutional provision that municipalities shall act
freely and independently within their competence, which shall
be established by the Constitution and laws, also means that in
case the Constitution or laws attribute certain functions to
municipalities, then municipalities discharge these functions
to the extent that they are attributed such functions. It means
that a certain part of the competence of municipalities must be
implemented directly, that the implementation of decisions
adopted by municipal councils within the limits of their
competence must not be bound by decisions (permissions,
consents, etc.) of certain state institutions or officials.
However, it needs to be emphasised that even the functions
which exclusively belong to municipalities are regulated by
laws. Not a single one of these functions mean that in a
respective area municipalities are absolutely independent.
In addition to the functions which belong exclusively to
municipalities, they may be commissioned to discharge certain
state functions; thus, a more efficient connection between
state power and citizens as well as democracy of administration
are ensured. In discharging these functions, the activities of
municipalities are bound by corresponding decisions of
institutions of state power and/or officials. Under the
Constitution, such state functions must be transferred to
municipalities by law.
In its ruling of 14 January 2002, while construing the
provision of Paragraph 2 of Article 120 of the Constitution
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws, together with the provision of Paragraph
1 of Article 121 of the Constitution that municipalities shall
draft and confirm their own budget and the provision of
Paragraph 1 of Article 127 of the Constitution that the
budgetary system of the Republic of Lithuania shall consist of
the independent State Budget of the Republic of Lithuania as
well as the independent municipal budgets, the Constitutional
Court held that the independence of the activities of
municipalities, which is entrenched in the Constitution, and
which is within the limits of the competence defined in the
Constitution and laws, implies that if municipalities are
transferred state functions by laws, or if they are given
duties by laws or other legal acts, funds must be provided for
the implementation of these functions (duties), also, if,
before the end of a budget year, municipalities are transferred
additional state functions (are given duties), for this purpose
funds must be allocated as well. Under the Constitution,
municipalities must observe the laws, thus, also the laws
whereby the municipalities are obligated to exercise the
functions transferred to them by the state. Municipalities
would be unable to exercise such duties unless their
implementation were not guaranteed by financial means. The
funds for the implementation of the functions transferred by
the state to municipalities must be provided for in the law on
the state budget. The independence of activities of
municipalities within the limits of the competence established
by the Constitution and laws and the support of the state for
municipalities, coordination of the interests of municipalities
and those of the state, which are entrenched in the
Constitution, imply that funds (municipal revenues and their
sources) must be provided for in the state budget, necessary
for the ensuring of all-sufficient functioning of
self-government and for the implementation of functions of
municipalities.
17.3. In itself, the fact that the Constitution does not
identify local self-government with state administration does
not mean that there is no interaction between state
administration and local self-government.
It has been mentioned that Paragraph 1 of Article 119 of
the Constitution provides that the right of self-government is
guaranteed to the administrative units of state territory which
are provided for by law. Paragraph 1 of Article 123 of the
Constitution provides that in higher level administrative
units, the administration shall be organised by the Government
in accordance with the procedure established by law. The
observance of the Constitution and the laws, as well as the
execution of the decisions of the Government by municipalities
shall be supervised by representatives appointed by the
Government (Paragraph 2 of Article 123 of the Constitution).
Paragraph 4 of Article 123 of the Constitution provides that in
cases and in accordance with the procedure provided for by law,
the Seimas may temporarily introduce direct administration in
the territory of a municipality.
It also needs noted that, under Paragraph 1 of Article 120
of the Constitution, the state shall support municipalities.
Thus, centralised state administration in administrative
territorial units is coordinated with decentralisation, while
consolidating the cooperation between central state
institutions and municipalities by law (Constitutional Court
ruling of 22 October 1996). The principle of coordination of
the interests of municipalities and the state manifests itself
not only in the support of municipalities by the state in
various ways and forms or in the supervision by the state of
the activities of municipalities in the forms prescribed by
law, but also in the coordination of common actions when
important social objectives are sought (Constitutional Court
ruling of 18 February 1998).
It needs to be noted that, while defining the competence
of municipalities by law and organising state administration in
the territory of a municipality, one must pay heed to the
principles of the freedom and independence of activities of
municipalities within their competence, which are established
by the Constitution and laws, and the principles of
coordination of interests of municipalities and the state,
which are entrenched in the Constitution. Therefore, it is not
permitted to oppose the principle of coordination of interests
of municipalities and the state, which is entrenched in the
Constitution, against the constitutional principles of the
freedom and independence of activities of municipalities within
their competence, which are established by the Constitution and
laws.
17.4. It has been mentioned that the Constitution does not
identify local self-government with state administration. State
administration is implemented through state power
establishments as well as other state institutions indicated in
the Constitution and laws. The right of self-government is
implemented through self-government institutions-municipal
councils; municipal councils form bodies which are accountable
to them. The constitutional principles upon which the
organisation of state power and the organisation of self
government are based are only overlapping in part.
17.4.1. Under the Constitution, the organisation of state
power and its activity are based on the principle of separation
of powers. The Constitutional Court has held in its rulings for
more than once that the constitutional principle of separation
of powers, among other requirements, implies that the
legislative, executive and judicial powers must be separated,
sufficiently independent, however, there must be a balance
between them, also, that every state institution is attributed
the competence which corresponds to its purpose, and the
particular content of which depends on the place of the power
in question in the entire system of state powers as well as its
relation with the other powers, also, that upon direct
establishment in the Constitution the powers of a particular
state institution, one state institution may not take over such
powers from another state institution, transfer or waive them,
also, that such powers may not be changed or restricted by law.
17.4.2. It also needs to be noted that the system of state
powers encompasses legislative, executive and judicial powers;
the constitutional principle of separation of powers determines
the relations of the aforementioned three state powers. There
are not any such powers on the level of local self-government;
the Constitution only provides for municipal
councils-representations of territorial communities-and
executive bodies which are formed by and accountable to
municipal councils. The Constitution consolidates the principle
of supremacy of municipal councils in regard to the executive
bodies which are accountable to the former.
17.4.3. In the context of the case at issue, it needs to
be noted that the constitutional principle of separation of
state powers is not identical to the constitutional principle
of the accountability of executive bodies to the
representation, on which inter alia the relations between the
state legislative power and the institutions of the executive
power, as well as the organisation and activity of
self-government institutions, are based.
Under the Constitution, the Seimas carries out the
parliamentary control of the Government. Upon the request of
the Seimas, the Government or individual Ministers must give an
account of their activities to the Seimas (Paragraph 1 of
Article 101 of the Constitution). Thus, the separation of state
powers in the Constitution also implies the accountability of
the Government, a collegial institution of the executive, to
the legislative power, the representation of the Nation.
Municipal councils are formed on the basis of universal,
equal and direct electoral right by secret ballot (Paragraph 2
of Article 119 of the Constitution); they form executive bodies
which are accountable to them (Paragraph 4 of Article 119 of
the Constitution). Thus, the relations between municipal
councils and their executive bodies are based on the
constitutional principle of accountability of executive bodies
to the representation.
Alongside, it needs to be noted that the constitutional
principle of accountability of executive bodies to the
representation has certain peculiarities on the state
administration level and on the local self-government level.
For instance, under Paragraph 2 of Article 60 of the
Constitution, a member of the Seimas (i.e. the representation
of the Nation) may be appointed only either as Prime Minister
or Minister (i.e. as member of a collegial institution, which
is accountable to the Seimas). Meanwhile, an analogous
reservation on the self-government level whereby a member of
the representation might be a member of the executive body
which is accountable to the municipal council is not provided
for in the Constitution.
17.4.4. Thus, constitutional principles of separation of
state powers and of accountability of executive bodies to the
representation are not identical as regards their content as
well as the application to a corresponding sphere. The
relations between municipal councils and their executive bodies
are based on the constitutional principles of the
accountability of executive bodies to the representation and
the supremacy of municipal councils over the executive bodies
accountable to them, however, not on the principle of
separation of powers.
18. It has been mentioned that the Constitution names
communities of state administrative territorial units
(territorial communities) as municipalities (or local
municipalities). On the other hand, the right of
self-government is inseparable from the institutions through
which the said right is implemented and/or from the
organisation and activities of the institutions which are
accountable to them.
Therefore, it is not coincidence that the Constitution
employs the notion of municipality not only in the sense of the
territorial community of an administrative unit but also in the
sense of local self-government institutions and/or the
institutions which are accountable to them (e.g. Paragraph 1 of
Article 73, Paragraph 2 of Article 120, Paragraph 1 of Article
121, and Paragraph 2 of Article 123).
19. Municipal councils as self-government institutions are
directly provided for in the Constitution; the Constitution
does not indicate any other self-government institutions. In
the context of the case at issue, it needs to be noted that the
notion "self-government institutions" expresses the
constitutional purpose of corresponding institutions of
territorial communities of administrative units: they are
institutions through which the right of self-government of
respective communities is implemented.
20. The implementation of the right of self-government is
impossible without democratic representation. Municipal
councils, as self-government institutions, are representative
institutions. While forming municipal councils, one must pay
heed to the principles of election of municipal council
members, which are established in Paragraph 2 of Article 119 of
the Constitution, as well as other requirements of the
Constitution.
20.1. Under Paragraph 1 of Article 34 of the Constitution,
citizens who, on the day of the election, have reached 18 years
of age, shall have the electoral right. Paragraph 2 of the same
article provides that the right to be elected shall be
established by the Constitution of the Republic of Lithuania
and by the election laws, while Paragraph 3 thereof provides
that citizens who are recognised as incapable by a court shall
not participate in elections.
20.2. Under Paragraph 2 of Article 119 of the
Constitution, the members of the municipal councils shall be
elected by the citizens of the Republic of Lithuania and other
permanent residents of the administrative unit, on the basis of
universal, equal and direct electoral right by secret ballot;
the same paragraph also provides that the members of the
municipal councils are elected as provided for by law. Thus,
the legislator has the constitutional competence to regulate
the procedure of municipal council elections by law. The
discretion of the legislator in the regulation of the procedure
of municipal council elections is bound by the Constitution.
Paragraph 2 of Article 119 of the Constitution links the
enjoyment of the active electoral right in the election of
members of municipal councils with a legal fact, i.e. permanent
residence of the person in a corresponding administrative unit.
This means that the legislator has a constitutional duty to
establish such a procedure for determination of the fact of the
permanent residence of the person in a corresponding
administrative unit so that municipal council members would
only be elected by the persons who could reasonably be held
permanent residents of corresponding administrative units.
Otherwise, one would deviate from the constitutional concept of
local self-government.
20.3. Under Paragraph 2 of Article 119 of the
Constitution, citizens of the Republic of Lithuania as well as
other permanent residents of the administrative unit may be
elected as municipal council members.
Paragraph 2 of Article 119 of the Constitution links the
enjoyment of the passive electoral right in the election of
members of municipal councils with a legal fact, i.e. permanent
residence of the person in a corresponding administrative unit.
This means that the legislator has a constitutional duty to
establish such a procedure for determination of the fact of the
permanent residence of the person in a corresponding
administrative unit so that municipal council members would
only be elected from the persons who could reasonably be held
permanent residents of corresponding administrative units.
Otherwise, one would deviate from the constitutional concept of
local self-government.
20.4. The limitations to the passive electoral right in
the election of municipal council members are established in
the Constitution.
20.4.1. Under Article 141 of the Constitution, persons
performing actual military service or alternative service, as
well as officers of the national defence system, of the police
and the Interior, non-commissioned officers, re-enlistees and
other paid officials of paramilitary and security services who
have not retired to the reserve may not be members of municipal
councils.
It has been mentioned that, under the Constitution, state
administration and local self-government are two systems of
public power. Under Paragraph 1 of Article 5 of the
Constitution, in Lithuania, the Seimas, the President of the
Republic and the Government, and the Judiciary, shall execute
state power. The President of the Republic shall be Head of
State; he shall represent the State of Lithuania and shall
perform everything that he is charged with by the Constitution
and laws (Article 77 of the Constitution). The President of the
Republic may not be a member of the Seimas, hold any other
office, and may not receive any remuneration other than the
remuneration established for the President of the Republic as
well as remuneration for creative activities (Paragraph 1 of
Article 83 of the Constitution). Members of the Seimas are
representatives of the Nation (Paragraph 1 of Article 55 of the
Constitution). In office, members of the Seimas shall follow
the Constitution of the Republic of Lithuania, the interests of
the State, as well as their own consciences, and may not be
bound by any mandates (Paragraph 4 of Article 59 of the
Constitution). The duties of a member of the Seimas, with the
exception of his duties in the Seimas, shall be incompatible
with any other duties in State institutions and organisations,
as well as with work in business, commercial and other private
establishments or enterprises (Paragraph 1 of Article 60 of the
Constitution). A member of the Seimas may be appointed only
either as Prime Minister or Minister (Paragraph 2 of Article 60
of the Constitution). The Government of the Republic of
Lithuania shall consist of the Prime Minister and Ministers
(Article 91 of the Constitution). The Prime Minister and
Ministers may not hold any other elected or appointed office,
may not work in business, commercial or other private
establishments or enterprises, and may not receive any
remuneration other than that established for their respective
Government offices and payment for creative activities (Article
99 of the Constitution). Courts administer justice (Paragraph 1
of Article 109 of the Constitution). The judge may not hold any
other elected or appointed office, may not work in any
business, commercial, or other private establishments or
enterprises; he is also not permitted to receive any
remuneration other than the remuneration established for the
judge and payment for educational or creative activities
(Paragraph 1 of Article 113 of the Constitution).
The same persons may not discharge the functions in the
implementation of state power and, at the same time, be members
of municipal councils, through which the right of self
government is implemented. The Constitution consolidates the
principle of prohibition of a double mandate. Besides, it needs
to be noted that in order that they might be able to discharge
the functions prescribed to them in the Constitution in the
implementation of state power, the Constitution provides for a
special legal status for the President of the Republic, members
of the Seimas, members of the Government and judges, which,
inter alia includes the restrictions on work, remuneration and
political activities, also a special procedure of removal from
office or revocation of the mandate and/or immunities:
inviolability of the person and a special procedure of
application of criminal and/or administrative liability.
Members of municipal councils, under the Constitution, do not
enjoy the aforesaid immunities, therefore, under the
Constitution, there may not be any such legal situation when
persons enjoying the said immunities are members of municipal
councils. Under the Constitution, members of municipal councils
may not be unequal in their legal status.
Under the Constitution, the state officials who, according
to the Constitution and laws enjoy the powers to control or
supervise the activities of municipal councils, may not be
members of municipal councils, either.
20.4.2. The said requirements of the Constitution do not
mean that the aforementioned persons do not have the right to
seek to be elected members of municipal councils (i.e. it does
not mean that they do not enjoy the passive electoral right in
the election of members of municipal councils), but that in
cases when there occurs a legal situation when a person
indicated in Article 141 of the Constitution or a person
discharging the functions of state power, or a state official
who, under the Constitution and laws, enjoys the powers to
control or supervise activities of municipalities, is elected a
member of a municipal council, he, before the newly elected
municipal council convenes to the first sitting, must decide
whether to remain in office or to be a member of the municipal
council.
21. Under the Constitution, decisions adopted by municipal
councils are inseparable from the execution of these decisions.
21.1. Under Paragraph 4 of Article 119 of the
Constitution, for the direct implementation of the laws of the
Republic of Lithuania, the decisions of the Government and the
municipal council, the municipal council shall establish
executive bodies accountable to it. The establishment of such
executive bodies is a constitutional duty of municipal
councils. Decisions of municipal councils are directly
implemented by the executive bodies which are accountable to
them, and which are inseparable part of the self-government
mechanism.
21.2. The Constitution does not establish any types of
executive bodies (collegial, single-person bodies), which are
accountable to municipal councils, nor the procedure of their
formation, their names, and interrelations; their functions and
competence are established in general terms: under Paragraph 4
of Article 119, the executive bodies accountable to municipal
councils are established for the direct implementation of the
laws of the Republic of Lithuania, the decisions of the
Government and the municipal council. The establishment, by
law, of the functions and competence of the executive bodies
accountable to municipal councils is left to be done by the
Seimas. When regulating the formation, functions and competence
of the executive bodies accountable to municipal councils by
laws, one must pay heed to the principles of local
self-government, which are established in the Constitution: the
representative democracy, accountability of executive bodies to
the representation, the supremacy of municipal councils in
respect to the executive bodies which are accountable to them,
etc.
The formula "the municipal council shall establish
executive bodies" which is employed in Paragraph 4 of Article
119 of the Constitution also implies that the legislator enjoys
the discretion to establish by law as to the procedure, whether
by election or in other fashion, the said executive bodies are
formed, also, which of the said bodies are collegial and which
are single-person, also, the type of their interrelations. The
legislator also enjoys the discretion to establish by law the
structure of collegial executive bodies and the number of their
members, or to leave it, by law, to be done by municipal
councils.
The principle of accountability of executive bodies to the
representation also implies that the executive bodies
accountable to municipal councils must be formed for the term
of office of the municipal council.
21.3. It needs to be noted that the executive bodies
indicated in Paragraph 4 of Article 119 of the Constitution are
the institutions which are established for the direct
implementation of the laws of the Republic of Lithuania, the
decisions of the Government and the municipal council. The said
executive bodies are not internal structural units (sub-units)
of municipal councils, which have to ensure the work of the
municipal council itself.
It has been mentioned that the Constitution consolidates
the principle of supremacy of municipal councils in regard to
the executive bodies which are accountable to the former. The
municipal councils have the powers to control the executive
bodies which are established by and accountable to the former.
Thus, under the Constitution, the executive bodies
accountable to municipal councils may not be formed from among
members of the municipal councils which establish them.
It has also been mentioned that, under the Constitution,
decisions adopted by municipal councils are inseparable from
the execution of these decisions, and that the executive bodies
which are accountable to municipal councils are inseparable
part of the self-government mechanism. It needs to be noted
that it is clear from the provisions of Article 141 of the
Constitution and other provisions of the Constitution that
military, paramilitary and security services are separated from
the civil service. Thus, the persons pointed out in Article 141
of the Constitution, who are performing actual military service
or alternative service, as well as officers of the national
defence system, of the police and the Interior,
non-commissioned officers, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve may be neither members municipal
councils nor officials or employees of the executive bodies
which are established by municipal councils and which are
accountable to the latter.
Under the Constitution, the persons who discharge the
functions of implementation of state power, also the state
officials who, according to the Constitution and laws, enjoy
the powers to control or supervise the activities of municipal
councils, may not be officials or employees of the aforesaid
executive bodies, either.
21.4. It needs to be noted that executive bodies which are
accountable to municipal councils may not be treated as ones
through which the right of self-government is implemented by
territorial communities, i.e. as self-government institutions,
since under Paragraph 1 of Article 119 of the Constitution the
right of self-government is implemented through municipal
councils. It has been mentioned that the municipal councils
have the constitutional competence to control the said
executive bodies. Therefore, the said executive bodies may not
replace municipal councils, or to bring municipal councils
under their control, or to dictate them. The powers of the
executive bodies may not be dominant in respect to the powers
of municipal councils. It is not permitted to establish the
legal regulation whereby the executive bodies accountable to
municipal councils would be equated to the municipal councils
which have established them, let alone the legal regulation
whereby the powers of the executive bodies established by and
accountable to municipal councils would restrict the powers of
the latter, or under which municipal councils would lose an
opportunity to control the executive bodies established by and
accountable to them.
The provision of Paragraph 4 of Article 119 of the
Constitution that for the direct implementation of the laws of
the Republic of Lithuania, the decisions of the Government and
the municipal council, the municipal council shall establish
executive bodies accountable to it also means that all
decisions of the said executive bodies must be grounded on
laws, as well as decisions of the Government and/or
corresponding municipal councils. Under the Constitution, the
executive bodies accountable to municipal councils do not have
the right to adopt decisions which are not grounded on laws,
decisions of the Government and/or corresponding municipal
councils, also such which, by their legal power, would compete
with those passed by the municipal councils.
21.4.1. It has been mentioned that that the Constitution
consolidates the principle of supremacy of municipal councils
in regard to the executive bodies which are accountable to
them. Thus, under the Constitution, it is not permitted to
establish any such legal regulation whereby the decision on the
issues attributed expressis verbis by the Constitution to the
municipality would by adopted not by municipal councils but by
the executive bodies established by and accountable to them.
It needs to be noted that the competence of municipalities
is defined expressis verbis in the Constitution in Paragraph 1
of Article 40 which inter alia indicates municipal
establishments of teaching and education; Paragraph 2 of
Article 41 which inter alia indicates municipal schools of
general education, vocational schools and schools of further
education; Paragraph 2 of Article 47 which inter alia provides
that municipalities may be permitted to acquire the ownership
of non-agricultural land plots required for the construction
and operation of buildings and facilities necessary for their
direct activities; Paragraph 4 of Article 119 which provides
that for the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it; Paragraph 1 of Article 121 which provides
that municipalities shall draft and confirm their own budget;
Paragraph 2 of Article 121 which provides that municipal
councils shall have the right to establish local levies within
the limits and in accordance with the procedure provided for by
law, and that municipal councils may provide for preferences
with respect to taxes and levies at the expense of their own
budget; Article 122 which provides that municipal councils
shall have the right to apply to court regarding the violation
of their rights.
The adoption of the decisions on the municipal issues
indicated in Paragraph 1 of Article 40, Paragraph 2 of Article
41, Paragraph 2 of Article 47, Paragraph 4 of Article 119,
Paragraphs 1 and 2 of Article 121 and Article 122 of the
Constitution is the exclusive constitutional competence of
municipal councils. Under the Constitution, it is not permitted
to establish the legal regulation which would create legal
preconditions for executive bodies accountable to municipal
councils to interfere with the exclusive constitutional
competence of municipal councils in the adoption of the
decisions on the issues indicated in Paragraph 1 of Article 40,
Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph
4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article
122 of the Constitution.
21.4.2. It has been held in this Ruling of the
Constitutional Court that the establishment, by law, of the
functions and competence of the executive bodies accountable to
municipal councils is left to be done by the Seimas. However,
as it has been mentioned, the principles of accountability of
executive bodies to the representation and of supremacy of
municipal councils in regard to the executive bodies which are
accountable to them, both of which are established in the
Constitution, imply that the municipal councils have the powers
to control the executive bodies which are established by and
accountable to them. Under the Constitution, the right of
self-government is implemented through municipal councils,
thus, all decisions adopted by the executive bodies accountable
to municipal councils on the issues assigned to the competence
of municipalities are subordinated to decisions of
corresponding municipal councils.
21.5. Corresponding functions and appropriate competence
are established to municipal institutions.
Constitution provides for two types of municipal
institutions: municipal councils (representative institutions)
and the executive bodies accountable to them (executive
institutions). In the cases established in the Constitution and
laws, authoritative empowerments are granted to the municipal
representative and executive institutions. Such municipal
institutions are institutions of municipal power and
institutions of public administration.
As decisions adopted by municipal councils are inseparable
from the execution of these decisions, then the municipal
representative institutions as well as the municipal executive
institutions, both of which are provided for in the
Constitution, according to their competence are responsible for
the implementation of the right of self-government and for the
direct implementation of the laws, the decisions of the
Government and the municipal council.
21.6. Municipal councils, while implementing the right of
self-government guaranteed by the Constitution, may also
establish other municipal institutions and other municipal
establishments which have authoritative empowerments. In the
context of the case at issue, it needs to be noted that the
notion "municipal institutions" means belonging of respective
institutions to a certain municipality. Municipal institutions
are established so that the interests of the municipality would
be realised, laws and decisions of the Government and the
municipal council would be directly implemented. Thus,
municipal councils, as well as the executive bodies accountable
to them, and other institutions established by municipal
councils, are to be regarded as "municipal institutions".
III
On the compliance of Paragraph 3 of Article 3 (wording of
12 October 2000) of the Law on Local Self-Government with
Paragraph 2 of Article 5 and Paragraphs 1, 3, and 4 of Article
119 of the Constitution, and that of Paragraph 4 of Article 3
(wording of 12 October 2000) of the Law on Local
Self-Government with Paragraphs 1, 3, and 4 of Article 119 of
the Constitution.
1. Paragraph 3 of Article 3 (wording of 12 October 2000)
of the Law on Local Self-Government provides: "Municipal
institutions shall be a representative institution-municipal
council, and executive institutions-the municipal board
(hereinafter referred to as the Board) and the mayor of the
municipality (hereinafter referred to as the Mayor), which
shall have the rights and duties of local power and public
administration. Municipal institutions shall be responsible for
the implementation of the rights of self-government and their
functions in the interest of the community."
Paragraph 4 of Article 3 (wording of 12 October 2000) of
the Law on Local Self-Government provides: "The municipal
control institution shall be the municipal controller, who
controls the use of the municipal budget and discharges the
functions of municipal inner audit."
2. The petitioner requests to investigate as to whether
Paragraph 3 of Article 3 (wording of 12 October 2000) of the
Law on Local Self-Government is not in conflict with Paragraph
2 of Article 5 and Paragraphs 1, 3, and 4 of Article 119 of the
Constitution, and whether Paragraph 4 of Article 3 (wording of
12 October 2000) of the same law is not in conflict with
Paragraphs 1, 3, and 4 of Article 119 of the Constitution.
3. While deciding whether Paragraph 3 of Article 3
(wording of 12 October 2000) of the Law on Local
Self-Government is not in conflict with Paragraph 2 of Article
5 and Paragraphs 1, 3, and 4 of Article 119 of the
Constitution, and that of Paragraph 4 of Article 3 (wording of
12 October 2000) of the same law is not in conflict with
Paragraphs 1, 3, and 4 of Article 119 of the Constitution, one
is to note that, as it has been mentioned in this Ruling of the
Constitutional Court, Paragraph 3 of Article 3 of the Law on
Local Self-Government (wording of 12 October 2000) defines the
notion "municipal institutions": (1) while listing municipal
institutions and grouping them: the municipal council is a
representative institution, meanwhile the municipal board and
the mayor of the municipality are executive institutions; (2)
while marking distinctive features of municipal institutions,
i.e. the features which make these institutions different from
other institutions: the rights and duties of local power and
public administration, responsibility for the implementation of
the right of self-government and their functions in the
interests of the community. It has also been held in this
Ruling of the Constitutional Court that Paragraph 4 of Article
3 (wording of 12 October 2000) of the Law on Local
Self-Government defines the notion "the municipal control
institution": (1) while naming the municipal control
institution: the municipal controller; (2) while marking
distinctive features of the municipal control institution, i.e.
the features which makes this institution different from other
institutions: the control of the use of the municipal budget,
and discharging the functions of the municipal inner audit.
3.1. After it has been established in Paragraph 3 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government that the municipal council is the municipal
representative institution, and that the municipal board and
the mayor of the municipality are executive institutions, and
after it has been established in Paragraph 4 of the same
article (wording of 12 October 2000) of the Law on Local
Self-Government that the municipal controller is the municipal
control institution, the provisions of the constitutional
concept of local self-government are realised that municipal
councils and the executive bodies accountable to them are
municipal institutions, that municipal councils are municipal
representative institutions, that the Seimas has the competence
to establish, by law, types, names, and competence of the
executive bodies accountable to municipal councils, that
municipal councils, while implementing the right of
self-government which is guaranteed by the Constitution, may
also establish other institutions, also, that the said other
institutions established by municipal councils are municipal
institutions.
The legal regulation established in Paragraphs 3 and 4 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government does not violate the provision of Paragraph 1
of Article 119 of the Constitution that the right of
self-government shall be guaranteed to the administrative units
of state territory which are provided for by law and that this
right shall be implemented through corresponding municipal
councils, the provision of Paragraph 3 of the same article that
the procedure for the organisation and activities of
self-government institutions shall be established by law, and
the provision of Paragraph 4 of the same article that for the
direct implementation of the laws of the Republic of Lithuania,
the decisions of the Government and the municipal council, the
municipal council shall establish executive bodies accountable
to it. Such legal regulation established in Paragraph 3 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government does not violate the provision of Paragraph 2
of Article 5 of the Constitution that the scope of power shall
be limited by the Constitution, either.
3.2. After it has been established in Paragraph 3 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government that municipal institutions have the rights and
duties of local power and public administration, and that they
are responsible for the implementation of the right of
self-government and for the discharging of their functions in
the interests of the community, and, after it has been
established in Paragraph 4 (wording of 12 October 2000) of the
same article that the municipal controller controls the use of
the municipal budget and discharges the functions of municipal
inner audit, the provisions of the constitutional concept of
local self-government are realised that municipal institutions
are established so that the interests of municipalities would
be realised, also, that laws and decisions of the Government
and the municipal council would be directly implemented, that
decisions adopted by municipal councils are inseparable from
the execution of these decisions, that corresponding competence
and according functions are established for municipal
institutions, that in the cases provided for in the
Constitution and laws authoritative empowerments are granted to
municipal representative and executive institutions, and that
such municipal institutions are municipal institutions of power
and of public administration, that the municipal representative
and executive institutions of power and public administration
are responsible for the implementation of the right of
self-government within their competence, also, that both the
municipal representative institutions which are provided for in
the Constitution and the municipal executive institutions are
responsible within their competence for the implementation of
the right of self-government, and for the direct implementation
of the laws of the Republic of Lithuania as well as the
decisions of the Government and the municipal council.
The legal regulation established in Paragraphs 3 and 4 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government does not mean that the executive bodies
established by municipal councils and accountable to them are
equated to the municipal councils, through which, under the
Constitution, the right of local self-government is
implemented, and which have established the said executive
bodies. In this context, it needs to be noted that it is
established in Paragraph 1 of Article 11 (wording of 12 October
2000) of the Law on Local Self-Government that the municipal
council is the institution which implements the right of
self-government.
The legal regulation established in Paragraphs 3 and 4 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government does not violate the provisions of Paragraph 1
of Article 119 of the Constitution that the right of
self-government shall be guaranteed to the administrative units
of state territory which are provided for by law, and that it
shall be implemented through corresponding municipal councils,
the provision of Paragraph 3 of the same article that the
procedure for the organisation and activities of
self-government institutions shall be established by law, and
the provision of Paragraph 4 of the same article that for the
direct implementation of the laws of the Republic of Lithuania,
the decisions of the Government and the municipal council, the
municipal council shall establish executive bodies accountable
to it. By the legal regulation established in Paragraph 3 of
Article 3 (wording of 12 October 2000) of the Law on Local
Self-Government the provision of Paragraph 2 of Article 5 of
the Constitution that the scope of power shall be limited by
the Constitution is not violated, either.
4. Taking account of the arguments set forth, one is to
draw the following conclusions:
1) Paragraph 3 of Article 3 (wording of 12 October 2000)
of the Law on Local Self-Government is not in conflict with
Paragraph 2 of Article 5, and Paragraphs 1, 3, and 4 of Article
119 of the Constitution;
2) Paragraph 4 of Article 3 (wording of 12 October 2000)
of the Law on Local Self-Government is not in conflict with
Paragraphs 1, 3, and 4 of Article 119 of the Constitution.
IV
On the compliance of Item 2 of Paragraph 1 of Article 5 of
the Law on Local Self-Government (wording of 12 October 2000)
with Paragraph 2 of Article 120 of the Constitution
1. Paragraph 1 of Article 5 of the Law on Local
Self-Government (wording of 12 October 2000) provides:
"Functions of municipalities, according to the freedom of
adoption of decisions, shall be grouped into:
1) Independent. Municipalities shall exercise such
functions in accordance with the competence granted to them by
laws, obligations undertaken before their community, and in
their interests. When implementing the said functions,
municipalities shall have the freedom of initiative of
decisions, their adoption and implementation, and shall be
responsible for the discharging of the said functions;
2) Assigned (independent-limited). When implementing this
and other laws, as well as other legal acts adopted on the
basis thereof, municipalities shall exercise these functions,
while taking into consideration local conditions and
circumstances;
3) State (transferred to municipalities). These shall be
state functions transferred to municipalities, while taking
into consideration the interests of the residents. The said
functions shall be transferred by laws and implemented in
conformity with legal acts. When implementing the said
functions, municipalities shall have the freedom of adoption of
decisions, as prescribed by laws;
4) Contractual. The implementation of such functions shall
be based on contracts."
2. The petitioner requests to investigate as to whether
Item 2 of Paragraph 1 of Article 5 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraph 2 of Article 120 of the Constitution.
3. Paragraph 2 of Article 120 of the Constitution
provides: "Municipalities shall act freely and independently
within their competence, which shall be established by the
Constitution and laws".
4. It has been held in this Ruling of the Constitutional
Court that the Constitution establishes the principle of
independence and freedom of activity of municipalities within
the competence defined by the Constitution and laws. Therefore,
according to the Constitution, the competence of municipalities
may and must be defined by laws.
The Constitution does not group the functions of
municipalities into state, assigned, independent or any other
types. Paragraph 3 of Article 119 of the Constitution provides
that the procedure for the organisation and activities of
self-government institutions shall be established by law. It is
within the competence of the legislator to establish functions
of municipalities and their types by law (Constitutional Court
ruling of 14 January 2002). When establishing the functions of
municipalities and their types, the legislator must pay heed to
the principle of independence and freedom of municipal
activities within the competence defined by the Constitution
and laws, the principle of coordination of municipal and state
interests, which are entrenched in the Constitution, as well as
the constitutional concept of local self-government.
5. The legislator, while having constitutional powers to
define the functions and competence of municipalities by law,
may also establish the functions of municipalities and their
types by law on the basis of freedom of adoption of decisions.
The principle of independence of municipal activities within
the competence defined by the Constitution and laws, and that
of coordination of interests of municipalities and the state,
which are established in the Constitution, imply that the
degree of independence of municipalities, while implementing
various functions provided by laws, may be different.
6. Since all functions of municipalities are discharged
within the competence defined by the Constitution and laws, all
of them are assigned to municipalities for the discharging in
this respect; none of them means absolute independence of
municipalities in a corresponding area.
7. Item 2 of Paragraph 1 of Article 5 of the Law on Local
Self-Government (wording of 12 October 2000) employs the
formula "assigned (independent-limited)". Such a name of one of
the types of municipal functions implies that the freedom of
municipal activities, while implementing the functions of the
said type, is bound by corresponding decisions of state
institutions and/or officials. The degree of this binding may
be different. The legislator, under the Constitution, having
the competence to establish, by law, municipal functions and
their types, may distinguish certain assigned municipal
functions in the discharging of which municipalities enjoy
greater freedom, as a separate category. It is important that
such a type of functions should not include the functions,
which exclusively belong to municipalities and the discharging
of which may not be bound by any decisions of state power
institutions or their officials.
Only this interpretation of the name "assigned
(independent-limited)" of a type of municipal functions,
established in Item 2 of Paragraph 1 of Article 5 of the Law on
Local Self-Government (wording of 12 October 2000), excludes
deviations from the constitutional concept of local
self-government. The name "assigned (independent-limited)" of a
type of municipal functions, established in Paragraph 1 of
Article 5 of the Law on Local Self-Government (wording of 12
October 2000), in itself is not in conflict with Paragraph 2 of
Article 120 of the Constitution.
8. It needs to be noted that the assigned
(independent-limited) municipal functions, indicated in Item 2
of Paragraph 1 of Article 5 of the Law on Local Self-Government
(wording of 12 October 2000), are enumerated in Article 7 of
the Law on Local Self-Government (wordings of 12 October 2000
and 24 September 2002). The petitioner does not dispute the
conformity of the said article with the Constitution.
9. The very nature of the right of self-government implies
that municipalities must discharge their functions while taking
account of the local conditions and circumstances, however, in
all cases they must observe the Constitution and laws. The
provision of Paragraph 1 of Article 5 of the Law on Local
Self-Government (wording of 12 October 2000), under which
municipalities, while implementing this and other laws, and
other legal acts adopted on the basis of the former, discharge
assigned (independent-limited) functions, taking into
consideration the local conditions and circumstances, does not
deviate from the provision of Paragraph 2 of Article 120 of the
Constitution that municipalities shall act freely and
independently within their competence, which shall be
established by the Constitution and laws.
10. It has been mentioned that if state functions are
transferred to municipalities by laws, also, if obligations for
them are created by laws or other legal acts, the funds
necessary for the implementation of these functions
(obligations) must be provided for.
While deciding whether the legal regulation established in
Item 2 of Paragraph 1 of Article 5 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with the said constitutional imperatives, it needs to be noted
that the said law does not regulate the financing of assigned
(independent-limited) municipal functions: the said law does
not establish as to what kind of funds must be employed for
financing of the discharging of the assigned
(independent-limited) municipal functions.
Thus, in itself the disputed legal regulation does not
create any preconditions that the functions will be established
for municipalities (their institutions), which they would not
be able to fulfil, and/or that the law on the State budget of a
respective year would not provide separately for the funds for
the discharging of the functions transferred to municipalities.
Thus, in itself the disputed legal regulation does not violate
the provision of Paragraph 2 of Article 120 of the Constitution
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws.
11. Taking account of the arguments set forth, one is to
conclude that Item 2 of Paragraph 1 of Article 5 of the Law on
Local Self-Government (wording of 12 October 2000) is not in
conflict with Paragraph 2 of Article 120 of the Constitution.
V
On the compliance of Paragraph 1 of Article 18 of the Law
on Local Self-Government (wording of 12 October 2000) with
Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119
of the Constitution.
1. Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000) provides: "For the
term of its powers, the municipal council shall form a board
from among the members of the municipal council and establish
the number of members of the board".
2. The petitioner requests to investigate as to whether
Paragraph 1 of Article 18 of the Law on Local Self-Government
(wording of 12 October 2000) is not in conflict with Paragraph
2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution.
3. Paragraph 2 of Article 5 of the Constitution provides:
"The scope of power shall be limited by the Constitution".
Paragraph 1 of Article 119 of the Constitution provides:
"The right of self-government shall be guaranteed to the
administrative units of State territory which are provided for
by law. It shall be implemented through corresponding municipal
councils."
Paragraph 4 of Article 119 of the Constitution provides:
"For the direct implementation of the laws of the Republic of
Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it."
4. While deciding whether Paragraph 1 of Article 18 of the
Law on Local Self-Government (wording of 12 October 2000) is
not in conflict with Paragraph 2 of Article 5 and Paragraphs 1
and 4 of Article 119 of the Constitution, the fact is of
crucial importance that the legislator, while defining
municipal institutions, defines the municipal board as a
municipal executive institution (Paragraph 3 of Article 3 of
the Law on Local Self-Government (wording of 12 October 2000)),
but not as an inner structural unit (division) of the municipal
council, which must guarantee the work of the municipal
council.
4.1. Upon the establishment in Paragraph 1 of Article 18
of the Law on Local Self-Government (wording of 12 October
2000), that the municipal council forms, for the term of its
powers, the board and establishes the number of its members,
the provisions of the constitutional concept of local
self-government are realised, namely, that executive bodies
accountable to municipal councils must be formed for the term
of powers of the municipal council, also, that the legislator
enjoys the discretion to establish, by law, the structure and
the number of members of collegial executive bodies or leave,
by law, to municipal councils to do so.
The said legal regulation established in Paragraph 1 of
Article 18 of the Law on Local Self-Government (wording of 12
October 2000) does not violate the provision of Paragraph 2 of
Article 5 of the Constitution that the scope of power shall be
limited by the Constitution, the provisions of Paragraph 1 of
Article 119 of the Constitution that the right of
self-government shall be guaranteed to the administrative units
of State territory which are provided for by law and that this
right shall be implemented through corresponding municipal
councils, and the provision of Paragraph 4 of Article 119 of
the Constitution that for the direct implementation of the laws
of the Republic of Lithuania, the decisions of the Government
and the municipal council, the municipal council shall
establish executive bodies accountable to it.
4.2. The provision of Paragraph 1 of Article 18 of the Law
on Local Self-Government (wording of 12 October 2000) that the
municipal board is formed from among the members of the
municipal council, is to be given a different evaluation.
4.2.1. It has been held in this Ruling of the
Constitutional Court that, according to the Constitution, the
executive bodies accountable to municipal councils may not be
formed from among members of the municipal councils which
establish them.
The fact that, under Paragraph 1 of Article 18 of the Law
on Local Self-Government (wording of 12 October 2000), the
municipal council forms a board from among its members means
that the constitutional principle of accountability of the
executive bodies, which are formed by the municipal councils,
to the municipal councils and that of supremacy of the
municipal councils over the executive bodies accountable to
them, are disregarded. Thus, the essential difference
entrenched in the Constitution between the municipal councils
as representative institutions through which the right of
self-government is implemented, and executive bodies, which are
formed by the councils and accountable to them, is erased.
Thus, the provision of Paragraph 1 of Article 119 of the
Constitution that the right of self-government shall be
guaranteed to the administrative units of state territory,
which are provided for by law, and the provision of Paragraph 4
of Article 119 of the Constitution that the municipal council
shall establish executive bodies accountable to it, are
violated.
Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 1 of Article 18 of the
Law on Local Self-Government (wording of 12 October 2000) that
the municipal council forms a board from among the members of
the municipal council violates Paragraphs 1 and 4 of Article
119 of the Constitution.
4.2.2. The competence of municipal boards, as institutions
of municipal power and public administration, is not
established by Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000). Therefore, there
are no grounds to state that the provision of Paragraph 2 of
Article 5 of the Constitution that the cope of power shall be
limited by the Constitution is violated; one is to conclude
that Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraph 2 of Article 5 of the Constitution.
5. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 of Article 18 of the Law on Local
Self-Government (wording of 12 October 2000) to the extent that
it provides that the municipal board is formed from among the
members of the municipal council is in conflict with Paragraphs
1 and 4 of Article 119 of the Constitution.
VI
On the compliance of Items 2, 3, 4, 8 and 15 of Paragraph
1 of Article 19 of the Law on Local Self-Government (wording of
12 October 2000) with Paragraph 2 of Article 5 and Paragraphs 1
and 4 of Article 119 of the Constitution.
1. Paragraph 1 entitled "Powers of the Board" of Article
19 of the Law on Local Self-Government (wording of 12 October
2000) provides:
"The Board: <...>
2) shall adopt decisions on the analysis of the
development of the territory of the municipality, preparation
of drafts of general long-term social, cultural, economic,
investment, demographic, crime control and prevention,
ecological, health and other programmes;
3) shall adopt decisions on the distribution of targeted
funds for state social and economic programmes and distribution
of other state funds to municipal institutions financed from
the budget;
4) shall, in compliance with laws and Government
resolutions, adopt decisions on the rate of rent payment for
municipal residential premises; <...>
8) shall adopt decisions compulsory to the residents
concerning sanitation, public health and environmental
protection issues and publish them in the press; <...>
15) on the proposal of the mayor and taking into
consideration the list approved by the law, shall resolve the
issue of the establishment of offices of public servants of
political (personal) confidence, establish their number;
<...>".
2. The petitioner requests to investigate as to whether
Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local
Self-Government (wording of 12 October 2000) are not in
conflict with Paragraph 2 of Article 5, and Paragraphs 1 and 4
of Article 119 of the Constitution.
3. While deciding whether Items 2, 3, 4, 8 and 15 of
Article 19 of the Law on Local Self-Government (wording of 12
October 2000) are not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution, the
fact is of crucial importance that the municipal board,
according to Paragraph 3 of Article 3 of the said law, is a
municipal executive institution, i.e. an executive body
accountable to the municipal council provided for by Paragraph
4 of Article 119 of the Constitution.
4. It has been mentioned that the functions and competence
of executive bodies accountable to the municipal councils are
provided by the Constitution only in general manner: under
Paragraph 4 of Article 119 of the Constitution, executive
bodies accountable to the municipal councils are formed for the
direct implementation of laws, decisions of the Government and
the municipal council. It has been held in this Ruling of the
Constitutional Court that it is left for the Seimas to
establish, by law, the competence of the executive bodies
accountable to the municipal councils. While establishing, by
law, the competence of the executive bodies accountable to the
municipal councils, the following provisions of the
constitutional concept of local self-government must
necessarily be observed: the municipal council is a
representative institution of the municipality; it is superior
to the executive bodies formed by it and accountable to it; the
executive bodies are formed for realisation of the interests of
the municipality, direct implementation of laws, decisions of
the Government and the municipal councils; the municipal
councils have powers to control the executive bodies formed by
and accountable to them.
It has also been held in this Ruling of the Constitutional
Court that, under the Constitution, it is not permitted to
establish any such legal regulation whereby the decision on the
issues attributed expressis verbis by the Constitution to the
municipality would by adopted not by municipal councils but by
the executive bodies established by and accountable to them,
i.e. the legal regulation, which might create legal
preconditions for the executive bodies accountable to the
municipal councils to interfere with the exclusive
constitutional competence of the municipal councils to adopt
decisions on self-government issues indicated in Paragraph 1 of
Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article
47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article
121 and Article 122 of the Constitution.
It has also been held that, under to the Constitution, all
decisions adopted by the executive bodies accountable to
municipal councils on the issues assigned to the competence of
municipalities are subordinated to decisions of corresponding
municipal councils.
5. Items 2, 3, 4, 8 and 15 of Article 19 of the Law on
Local Self-Government (wording of 12 October 2000), disputed by
the petitioner, indicate certain issues on which municipal
councils may adopt decisions. These items establish respective
powers of the municipal board for the direct implementation of
laws, decisions of the Government and the municipal councils;
the municipal councils have powers to control the municipal
board.
6. If the powers of the municipal board, established in
Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local
Self-Government (wording of 12 October 2000), are interpreted
as established for the direct implementation of laws, decisions
of the Government and the municipal councils, and while taking
account of the powers of the municipal councils to control the
municipal board, one is to conclude, that the above-mentioned
items are not in conflict with Paragraphs 1 and 4 of Article
119 of the Constitution.
7. Having held that Items 2, 3, 4, 8 and 15 of Article 19
of the Law on Local Self-Government (wording of 12 October
2000) are not in conflict with Paragraphs 1 and 4 of Article
119 of the Constitution, one is to hold that they are not in
conflict with Paragraph 2 of Article 5 of the Constitution,
either.
VII
On the compliance of Items 5, 7, 9, 12, 15, 16, 17 and 18
of Paragraph 1 of Article 21 (wording of 12 October 2000), Item
6 of the same paragraph (wordings of 12 October and 25
September 2001), and Item 14 of the same paragraph (wordings of
12 October 2000 and 8 November 2001) with Paragraph 2 of
Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution.
1. Paragraph 1 entitled "Powers of the Mayor, the Deputy
Mayor" of Article 21 of the Law on Local Self-Government
(wording of 12 October 2000) inter alia provides:
"<...> The Mayor: <...>
5) shall, while taking into consideration the
recommendation of the municipal administrator, approve the
regulations of subdivisions of the municipal administration,
list of subdivision staff, without exceeding the funds
appropriated for salaries and the number of employees of the
municipal administration, fixed by the board;
6) shall administer municipal grants-in-aid or shall
empower the municipal administrator to do so;
7) shall, through the municipal administrator, head
structural and structural territorial subdivisions of the
municipal administration; <...>
9) together with appropriate State institutions and
establishments, shall prepare and implement preventive measures
and rescue residents in the events of catastrophes, natural
disasters, epidemics, contagious diseases, liquidate their
results, take care of the implementation of crime control and
prevention programmes, as well as of the environmental
conditions in the municipal territory; <...>
12) shall organise the research and analysis of migration
processes, together with territorial jobcentres shall take care
of residents' employment, improvement of their qualifications
and re-qualification, as well as organisation of public
works;<...>
14) shall, under the procedure provided for in laws, issue
briefs of building design conditions, organise coordination of
buildings' projects and issue permits to construct,
reconstruct, repair or demolish buildings, or shall empower,
under the established procedure, the municipal administrator or
another servant of the municipal administration to do so;
15) shall organise primary personal and public health
care, attendance and care of sick persons, invalids and elderly
people, issue recommendations to institutions of primary health
care concerning pharmaceutical activities;
16) shall set up and approve commissions for calling up
recruits and medical expert examination of draftees;
17) shall organise general education of children, youth
and adults, pre-school education of children, supplementary
training of children and youth;
18) shall organise the provision of social services and
other social support, be responsible for social integration of
the disabled (invalids, persons with total disability)<...>".
Item 6 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 25 September 2001) provides, that
the mayor "shall administer municipal grants-in-aid, organise
the execution of the municipal budget and shall be responsible
for the municipal economic and financial activity, or shall
empower the municipal administrator to perform everything
listed above."
Item 14 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 8 November 2001) provides, that the
mayor "shall, under the procedure provided for in laws, issue
briefs of building design conditions, construction permits and
shall supervise the use of buildings, or shall empower, under
the established procedure, the municipal administrator or
another servant of the municipal administration to do so".
2. The petitioner requests to investigate as to whether
Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) is not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution.
It has been held in this Ruling of the Constitutional
Court that the provisions of Item 6 of Paragraph 1 of Article
21 of the Law on Local Self-Government (wording of 12 October
2000), disputed by the petitioner, that the mayor "shall
administer municipal grants-in-aid or shall empower the
municipal administrator to do so", remained in Item 6 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 25 September 2001), also the provisions of Item 14
of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000), disputed by the
petitioner, that the mayor "shall, under the procedure provided
for in laws, issue briefs of building design conditions,
organise coordination of buildings' projects and issue permits
to construct, reconstruct, repair or demolish buildings, or
shall empower, under the established procedure, the municipal
administrator or another servant of the municipal
administration to do so", virtually remained in Item 14 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 8 November 2001), though with certain formulations
changed.
3. While deciding whether Items 5, 6, 7, 9, 12, 14, 15,
16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution, the circumstance is of
crucial importance that, under Paragraph 3 of Article 3 of the
said law, the mayor is a municipal executive institution, i.e.
an executive body accountable to the municipal council provided
for by Paragraph 4 of Article 119 of the Constitution.
4. It has been mentioned that the functions and competence
of executive bodies accountable to the municipal councils are
established by the Constitution only in general manner: under
Paragraph 4 of Article 119 of the Constitution, executive
bodies accountable to the municipal councils are established
for the direct implementation of the laws, the decisions of the
Government and the municipal councils. It has been held in this
Ruling of the Constitutional Court that it is left for the
Seimas to establish, by law, the competence of executive bodies
accountable to the municipal councils. While establishing, by
law, the competence of executive bodies accountable to the
municipal councils, the following provisions of the
constitutional concept of local self-government must be paid
heed to: the municipal council is a municipal representative
institution; it is superior to the executive bodies formed by
it and accountable to it; the executive bodies are formed for
the realisation of the interests of the municipality, direct
implementation of laws, decisions of the Government and the
municipal councils; the municipal councils have powers to
control executive bodies formed by them and accountable to
them.
It has also been held in this Ruling of the Constitutional
Court that, under the Constitution, it is not permitted to
establish any such legal regulation whereby the decision on the
issues attributed expressis verbis by the Constitution to the
municipality would by adopted not by municipal councils but by
the executive bodies established by and accountable to them,
i.e. the legal regulation, which might create legal
preconditions for the executive bodies accountable to the
municipal councils to interfere with the exclusive
constitutional competence of the municipal councils to adopt
decisions on self-government issues indicated in Paragraph 1 of
Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article
47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article
121 and Article 122 of the Constitution.
It has also been held that, under to the Constitution, all
decisions adopted by the executive bodies accountable to
municipal councils on the issues assigned to the competence of
municipalities are subordinated to decisions of corresponding
municipal councils.
5. Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 12 October 2000), which are disputed by the
petitioner, indicate certain issues on which the mayor of the
municipality may take decisions. These items provide for
respective powers of the mayor of a municipality for the direct
implementation of the laws, the decisions of the Government and
the municipal councils; municipal councils have the powers to
control the mayor of the municipality.
6. While interpreting the powers of the mayor of the
municipality established in Items 5, 6, 7, 9, 12, 14, 15, 16,
17 and 18 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) as such which have
been provided for the direct implementation of the laws, the
decisions of the Government and the municipal councils, and
taking account of the powers of the municipal councils to
control the mayor of a municipality, one is to conclude, that
the above-mentioned items are not in conflict with Paragraphs 1
and 4 of Article 119 of the Constitution.
7. Having held that Items 5, 6, 7, 9, 12, 14, 15, 16, 17
and 18 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) are not in
conflict with Paragraphs 1 and 4 of Article 119 of the
Constitution, one is to hold that they are not in conflict with
Paragraph 2 of Article 5 of the Constitution.
8. Having held that Items 5, 6, 7, 9, 12, 14, 15, 16, 17
and 18 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) are not in
conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4
of Article 119 of the Constitution, and taking account of the
fact that the provisions of Item 6 of Paragraph 1 of Article 21
of the Law on Local Self-Government (wording of 12 October
2000), that the mayor "shall administer municipal grants-in-aid
or shall empower the municipal administrator to do so" remained
in Item 6 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 25 September 2001), which provides
that the mayor "shall administer municipal grants-in-aid,
organise the execution of the municipal budget and shall be
responsible for the municipal economic and financial activity,
or shall empower the municipal administrator to perform
everything listed above", also of the fact that the provisions
of Item 14 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) that the mayor
"shall, under the procedure provided for in laws, issue briefs
of building design conditions, organise coordination of
buildings' projects and issue permits to construct,
reconstruct, repair or demolish buildings, or shall empower,
under the established procedure, the municipal administrator or
another servant of the municipal administration to do so", even
with some formulations changed, remained in Item 14 of
Paragraph 1 of Article 21 of the Law on Local Self-Government
(wording of 8 November 2001), which provides that the mayor
"shall administer municipal grants-in-aid, organise the
execution of the municipal budget and shall be responsible for
the municipal economic and financial activity, or shall empower
the municipal administrator to perform everything listed
above", it must also be held that Item 6 of Paragraph 1
(wording of 25 September 2001) and Item 14 of the said
paragraph (wording 8 November 2001) of Article 21 of the Law on
Local Self-Government are not in conflict with Paragraph 2 of
Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution, either.
VIII
On the compliance of Item 1 of Paragraph 1 of Article 21
of the Law on Local Self-Government (wording of 12 October
2000) with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of
Article 119 of the Constitution
1. Item 1 of Paragraph 1 of Article 21 entitled "The
Powers of the Mayor, the Deputy Mayor" of the Law on Local
Self-Government (wording of 12 October 2000) provides, that the
mayor "shall determine and draw up agendas for the municipal
council and the municipal board sittings and submit draft
decisions, convene sittings of the municipal council and chair
them, coordinate the activity of committees and commissions of
the municipal council, sign decisions of the municipal council
and the municipal board and the minutes of the sittings that he
has chaired".
2. The petitioner requests to investigate as to whether
Item 1 of Paragraph 1 of Article 21 of the Law on Local
Self-Government (wording of 12 October 2000) is not in conflict
with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of
Article 119 of the Constitution.
3. While deciding, whether Item 1 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) is not in conflict with Paragraph 2 of Article 5
and Paragraphs 1 and 4 of Article 119 of the Constitution, the
circumstance is of crucial importance that, according to
Paragraph 3 of Article 3 of the said law, the mayor of the
municipality is a municipal executive institution, i.e. the
executive body accountable to the municipal council, which is
provided for Paragraph 4 of Article 119 of the Constitution.
4. Under Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government (wording of 12 October 2000), the mayor
shall determine and draw up agendas for the municipal council
and the municipal board sittings and submit draft decisions,
convene sittings of the municipal council and chair them,
coordinate the activity of committees and commissions of the
municipal council, sign decisions of the municipal council and
the municipal board and the minutes of the sittings that he has
chaired.
4.1. Upon the establishment in Item 1 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) that the mayor shall determine and draw up
agendas for the municipal board sittings and submit draft
decisions of the board, sign decisions of the municipal board
and the minutes of the sittings of the board that he has
chaired, an interrelation of two municipal executive
institutions, the municipal board and the mayor of the
municipality, established by the Law on Local Self-Government
has been consolidated: the mayor of the municipality is the
head of the municipal board, a collegial executive institution.
Such legal regulation does not deviate from the constitutional
concept of local self-government, nor does it violate the
provision of Paragraph 2 of Article 5 of the Constitution that
the scope of powers shall be limited by the Constitution, the
provisions of Paragraph 1 of Article 119 that the right of
self-government shall be guaranteed to the administrative units
of state territory which are provided for by law and that this
right shall be implemented through corresponding municipal
councils, and the provision of Paragraph 4 of the same article
that for the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall establish executive bodies
accountable to it.
4.2. A different evaluation should be given to the
provisions of Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government (wording of 12 October 2000) that the
mayor shall determine and draw up agendas for the municipal
council sittings and submit draft decisions of municipal
council, convene sittings of the municipal council and chair
them, coordinate the activity of committees and commissions of
the municipal council, sign decisions of the municipal council
and the minutes of the sittings of the council that he has
chaired.
4.2.1. It has been held in this Ruling of the
Constitutional Court that the executive bodies accountable to
municipal councils may not be formed from among members of the
municipal councils which establish them. It has been mentioned
that the mayor of the municipality is an executive body
accountable to the municipal council. According to the
Constitution, he may not be a member of the municipal council.
Paragraph 3 of Article 3 of the Law on Local
Self-Government (wording of 12 October 2000) defines that the
mayor of the municipality is a municipal executive institution;
this is precisely the reason why, under the Constitution, he
may not have the powers to determine and draw up agendas for
the municipal council sittings and submit draft decisions of
municipal council, convene sittings of the municipal council
and chair them, coordinate the activity of committees and
commissions of the municipal council, sign decisions of the
municipal council and the minutes of the sittings of the
council that he has chaired.
The above-mentioned provisions of Item 1 of Paragraph 1 of
Article 21 of the Law on Local Self-Government (wording of 12
October 2000) disregard the principles of local self-government
established by the Constitution: representative democracy,
accountability of the executive bodies to the representation,
supremacy of the municipal councils over executive bodies
accountable to them. Thus, the essential difference between the
municipal councils, as representative institutions, through
which the right to self-government is implemented, and
executive bodies accountable to them, is erased. Therefore, the
provision of Paragraph 1 of Article 119 of the Constitution
that the right of self-government guaranteed to the
administrative units of the state territory, which are provided
for by law, is implemented through corresponding municipal
councils, and the provision of Paragraph 4 of the same article
that the municipal council shall establish executive bodies
accountable to them, are violated.
4.2.2. It has been held in this Ruling of the
Constitutional Court that the Constitution provides for two
types of municipal institutions: municipal councils
(representative institutions) and the executive bodies
accountable to them (executive institutions); these are
institutions of municipal power and institutions of public
administration.
Upon the establishment in Item 1 of Paragraph 1 of Article
21 of the Law on Local Self-Government (wording of 12 October
2000) that the mayor shall determine and draw up agendas for
the municipal council sittings and submit draft decisions of
municipal council, convene sittings of the municipal council
and chair them, coordinate the activity of committees and
commissions of the municipal council, sign decisions of the
municipal council and the minutes of the sittings of the
council that he has chaired, the powers of the mayor of the
municipality, as an executive institution of local power, are
broadened without constitutional grounds. Thus, such legal
regulation disregards the provisions of Paragraph 2 of Article
5 of the Constitution, according to which the scope of power
shall be limited by the Constitution.
5. Taking account of the arguments set forth, one is to
conclude that Item 1 of Paragraph 1 of Article 21 of the Law on
Local Self-Government (wording of 12 October 2000) to the
extent that the mayor shall determine and draw up agendas for
the municipal council sittings and submit draft decisions of
municipal council, convene sittings of the municipal council
and chair them, coordinate the activity of committees and
commissions of the municipal council, sign decisions of the
municipal council and the minutes of the sittings of the
council that he has chaired, is in conflict with Paragraph 2 of
Article 5, and Paragraphs 1 and 4 of Article 119 of the
Constitution.
IX
On the official publication of the Ruling of the
Constitutional Court in this case.
1. Under Paragraph 1 of Article 107 of the Constitution, a
law (or part thereof) of the Republic of Lithuania or other act
(or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision
of the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution of the Republic
of Lithuania.
Under Article 84 of the Law on the Constitutional Court of
the Republic of Lithuania, the rulings and conclusions of the
Constitutional Court, as well as, if necessary, other decisions
thereof, shall be officially publicized in: a separate chapter
of the official gazette "Valstybės žinios" (The News of the
State); a special publication of the Seimas; and newspapers
through the Lithuanian News Agency (ELTA). If necessary, the
Constitutional Court shall publish its collections of its
rulings and decisions as well as other publications. Rulings of
the Constitutional Court shall become effective on the day that
they are publicized in one of the above-mentioned publications
first.
Thus, under the Constitution and the Law on the
Constitutional Court, the Constitutional Court has powers,
while taking account of the circumstances of a concrete case,
to decide in which of the indicated publications its ruling
must be officially published first and, in particular, when
this must be done. Alongside, the Constitutional Court notes
that the Constitutional Court rulings related to the protection
of human rights and freedoms must, in all cases, be published
without delay.
2. It has been held in this Ruling of the Constitutional
Court that Paragraph 1 of Article 18 (wording of 12 October
2000) of the Law on Local Self-Government to the extent that it
provides that the municipal board is formed from among the
members of the municipal council is in conflict with Paragraphs
1 and 4 of Article 119 of the Constitution, also, that Item 1
of Paragraph 1 of Article 21 (wording of 12 October 2000) of
the Law on Local Self-Government to the extent that it provides
that the mayor shall determine and draw up agendas for the
municipal council sittings and submit draft decisions of
municipal council, convene sittings of the municipal council
and chair them, coordinate the activity of committees and
commissions of the municipal council, sign decisions of the
municipal council and the minutes of the sittings of the
council that he has chaired is in conflict with Paragraph 2 of
Article 5 and Paragraphs 1 and 4 of Article 119 of the
Constitution.
It needs to be noted that the said provisions of the Law
on Local Self-Government (wording of 12 October 2000 with
subsequent amendments) are systematically interrelated with
many other provisions of the same law.
3. Due to the fact that, under the Constitution and the
Law on the Constitutional Court, a law (or part thereof) may
not be applied from the day of official promulgation of the
decision of the Constitutional Court that the act in question
(or part thereof) is in conflict with the Constitution, one is
to emphasise that if this Ruling of the Constitutional Court
were officially published immediately after its public
promulgation in the Constitutional Court hearing, there would
appear vacuum in the legal regulation concerning local
self-government, which would in essence disrupt the functioning
of local self-government mechanism and state administration. In
order to remove this vacuum in legal regulation, some time is
necessary.
Taking account of this, this Ruling of the Constitutional
Court is to be officially published in the official gazette
Valstybės žinios upon the expiration of two months of its
promulgation in the public hearing of the Constitutional Court,
i.e. on 25 February 2003.
Conforming to Articles 102 and 107 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56, 64
and 84 of the Law on the Constitutional Court of the Republic
of Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Paragraphs 3 and 4 of Article 3
(wording of 12 October 2000), Item 2 of Paragraph 1 of Article
5 (wording of 14 January 2002), Items 2, 3, 4, 8, and 15 of
Paragraph 1 of Article 19 (wording of 12 October 2000), Item 5
(wording of 12 October 2000), Item 6 (wordings of 12 October
2000 and 25 September 2001), Items 7, 9, 12 (wording of 12
October 2000), Item 14 (wordings of 12 October 2000 and 8
November 2001), Items 15, 16, 17, and 18 (wordings of 12
October 2000) of Paragraph 1 of Article 21 of the Republic of
Lithuania Law on Local Self-Government, are not in conflict
with the Constitution of the Republic of Lithuania.
2. To recognise that Paragraph 1 of Article 18 (wording of
12 October 2000) of the Republic of Lithuania Law on Local
Self-Government to the extent that it provides that the
municipal board is formed from among the members of the
municipal council is in conflict with Paragraphs 1 and 4 of
Article 119 of the Constitution of the Republic of Lithuania.
3. To recognise that Item 1 (wording of 12 October 2000)
of Paragraph 1 of Article 21 of the Republic of Lithuania Law
on Local Self-Government to the extent that it provides that
the mayor shall determine and draw up agendas for the municipal
council sittings and submit draft decisions of municipal
council, convene sittings of the municipal council and chair
them, coordinate the activity of committees and commissions of
the municipal council, sign decisions of the municipal council
and the minutes of the sittings of the council that he has
chaired, is in conflict with Paragraph 2 of Article 5 and
Paragraphs 1 and 4 of Article 119 of the Constitution of the
Republic of Lithuania.
4. To recognise that the Republic of Lithuania Law on the
Entering into the List of Constitutional Laws of the
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution,
according to the procedure of its adoption, is in conflict with
Paragraph 3 of Article 69 of the Constitution of the Republic
of Lithuania.
5. To recognise that the Republic of Lithuania
Constitutional Law on the Procedure of the Application of the
Law on the Alteration of Article 119 of the Constitution is in
conflict with Paragraph 1 of Article 6, Paragraph 2 of Article
119 of the Constitution of the Republic of Lithuania, the
principle of the supremacy of the Constitution, the principle
of a state under the rule of law, which are entrenched in the
Constitution of the Republic of Lithuania, while according to
the procedure of its adoption it is in conflict with Paragraph
3 of Article 69 of the Constitution of the Republic of
Lithuania.
6. This Ruling of the Constitutional Court is to be
officially published in the official gazette "Valstybės žinios"
on 25 February 2003.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas