Lietuviškai
{Case No. 21/2003
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 4 OF
THE REPUBLIC OF LITHUANIA LAW ON THE SUPPLEMENT
AND AMENDMENT OF ARTICLES 86 AND 87 OF THE LAW ON
THE ELECTIONS TO MUNICIPAL COUNCILS AND ITS
SUPPLEMENT WITH ARTICLE 881 WITH THE CONSTITUTION
OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE
OF GOVERNMENT OF THE REPUBLIC OF LITHUANIA
RESOLUTION NO. 457 "ON THE DISMISSAL OF THE CHIEF
OF THE VILNIUS COUNTY" OF 11 APRIL 2003 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND
PARAGRAPH 1 OF ARTICLE 9 OF THE REPUBLIC OF
LITHUANIA LAW "ON THE PROCEDURE OF PUBLICATION AND
COMING INTO FORCE OF REPUBLIC OF LITHUANIA LAWS
AND OTHER LEGAL ACTS"
30 May 2003
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 Vilnius Regional Administrative
Court, the petitioner, who was Nijolė Šidagienė, Chairwoman of
a college of judges,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Petras Papovas, a
member of the Seimas, and Pranas Žukauskas, chief specialist of
the Legal Department of the Office of the Seimas,
the representative of the Government of the Republic of
Lithuania, the party concerned, who was Rasa Budbergytė,
Secretary of the Ministry of the Interior of the Republic of
Lithuania,
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 13 May
2003 in its public hearing heard Case No. 21/2003 which
originated in a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate
1) whether Paragraph 2 of Article 4 of the Republic of
Lithuania Law on the Supplement and Amendment of Articles 86
and 87 of the Law on the Elections to Municipal Councils and
Its Supplement with Article 881 which provides that the norms
of Paragraph 2 of Article 881 of the Law on the Elections to
Municipal Councils concerning the refusal of the mandate of a
municipal council member by a person elected as a municipal
council member until the first sitting of the municipal council
are applied from the elections to municipal councils of the
next term of office was not in conflict with Paragraphs 1 and 2
of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2
of Article 60 of the Constitution of the Republic of Lithuania;
2) whether Government of the Republic of Lithuania
Resolution No. 457 "On the Dismissal of the Chief of the
Vilnius County" of 11 April 2003 was not in conflict with the
principle of a state under the rule of law entrenched in the
Preamble to the Constitution of the Republic of Lithuania and
Paragraph 1 of Article 9 of the Republic of Lithuania Law "On
the Procedure of Publication and Coming Into Force of Republic
of Lithuania Laws and Other Legal Acts".
The Constitutional Court
has established:
I
The petitioner, the Vilnius Regional Administrative Court,
was investigating an administrative case. The said court
suspended the investigation of the case by its ruling and
applied to the Constitutional Court with a petition requesting
to investigate
1) whether Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 (Official Gazette Valstybės žinios, 2003, No.
17-711; hereinafter also referred to as the Law) which provides
that the norms of Paragraph 2 of Article 881 of the Law on the
Elections to Municipal Councils concerning the refusal of the
mandate of a municipal council member by a person elected as a
municipal council member until the first sitting of the
municipal council are applied from the elections to municipal
councils of the next term of office was not in conflict with
Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and
Paragraphs 1 and 2 of Article 60 of the Constitution.
2) whether Government Resolution No. 457 "On the Dismissal
of the Chief of the Vilnius County" of 11 April 2003 (Official
Gazette Valstybės žinios, 2003, No. 36-1581) was not in
conflict with the principle of a state under the rule of law
entrenched in the Preamble to the Constitution and Paragraph 1
of Article 9 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
II
The request of the petitioner is based on the following
arguments.
1. In its ruling of 24 December 2002, the Constitutional
Court held that the Constitution consolidates the principle of
prohibition of a double mandate and that 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. In
addition, 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. In the said
ruling, the Constitutional Court inter alia held that if 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 his previous office or to be a
member of the municipal council.
On 28 January 2003, the Seimas adopted the Republic of
Lithuania Law on the Supplement and Amendment of Articles 86
and 87 of the Law on the Elections to Municipal Councils and
Its Supplement with Article 881 and established by Article 1 of
the said law that the office of a municipal council member
shall be incompatible with the office of the President of the
Republic, a member of the Seimas, a member of the Government,
or of a state official who, under the Constitution and laws,
enjoys the powers to control or supervise activities of
municipalities, also with the office of the county chief,
deputy county chief, the controller of the municipality, a
public servant of the service of the controller of the
municipality, director of the municipal administration and his
deputy or a public servant of the municipal administration. The
legislator established in Paragraph 2 of Article 4 of the said
law that the norms of Paragraph 2 of Article 881 of the Law on
the Elections to Municipal Councils concerning the refusal of
the mandate of a municipal council member by a person elected
as a municipal council member until the first sitting of the
municipal council are applied from the elections to municipal
councils of the next term of office. The petitioner notes that
such legal regulation permitted certain persons during the
first sitting of the municipal council to hold the office of a
municipal council member and, at the same time, the office of a
member of the Seimas or other office incompatible with the
office of a municipal council member. Therefore, the court had
doubts whether Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 is not in conflict with the principle of the
separation of powers entrenched in Paragraphs 1 and 2 of
Article 5, Paragraph 4 of Article 59 and the principle of the
prohibition of a double mandate entrenched in Paragraphs 1 and
2 of Article 60 of the Constitution.
2. By the disputed Resolution "On the Dismissal of the
Chief of the Vilnius County" of 11 April 2003, the Government
dismissed Gediminas Paviržis from the office of the Chief of
the Vilnius County as from the date indicated in his
application. The said resolution was published in the official
gazette Valstybės žinios on 16 April 2003; the resolution did
not establish a later date of its entry into force. According
to the petitioner, G. Paviržis handed in his application to the
Government, requesting to dismiss him from office on 8 April
2003.
It is noted in the petition of the petitioner that,
according to Paragraph 1 of Article 9 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts", the resolutions by the
Government shall come into force following the day, when signed
by the Prime Minister and the appropriate minister, they shall
be published in the official gazette Valstybės žinios, provided
a later date of their coming into force has not been
established by the resolution itself.
Therefore the court had doubts whether the disputed
Government resolution was not in conflict with the principle of
a state under the rule of law entrenched in the Preamble to the
Constitution and Paragraph 1 of Article 9 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts".
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the Seimas, the party
concerned, who were P. Papovas, a member of the Seimas, and P.
Žukauskas, chief specialist of the Legal Department of the
Office of the Seimas, and the representative of the Government,
the party concerned, who was R. Budbergytė, Secretary of the
Ministry of the Interior.
1. It is noted in the explanations by the representative
of the Seimas, the party concerned, who was P. Papovas, that
the Constitutional Court ruling of 24 December 2002 was adopted
in the case in which one did not investigate the issues of the
compliance of the provisions of the Law on Elections to
Municipal Councils.
The representative of the party concerned maintains that
the Constitution does not contain any prohibition for a member
of the Seimas to hold the office of a municipal council member,
as under Paragraph 1 of Article 60 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, meanwhile the
municipal council is a municipal institution but not a state
institution or organisation. Therefore, in the opinion of the
representative of the party concerned, until the said
Constitutional Court ruling went into effect, members of the
Seimas were not prohibited from being also municipal council
members.
P. Papovas also notes that, under the Republic of
Lithuania Law on Administrative Supervision of Municipalities,
representatives of the Government shall exercise administrative
supervision of municipalities, who are prohibited, by laws, to
be members of the councils of the municipalities which are
supervised by them. The representative of the party concerned
doubts whether the county chief or his deputy are to be
attributed to the persons exercising the functions of
implementation of state power, or to the state officials who,
under the Constitution and laws, enjoy the powers to control or
supervise activities of municipalities. Therefore, P. Papovas
believes that until the Constitutional Court ruling of 24
December 2002 went into effect, county chiefs and their
deputies had been allowed to be members of municipalities.
It is noted in the explanations of the representative of
the party concerned that the Constitutional Court ruling of 24
December 2002 was adopted after the elections of municipal
councils. Until the said ruling went into effect, and until the
elections to municipal councils, members of the Seimas, county
chiefs and their deputies, according to the laws of the
Republic of Lithuania, were permitted to be municipal council
members as well. Therefore, they, when taking part in the
elections of municipal councils, expected to become members of
the councils and undertook certain obligations to the voters.
In the opinion of P. Papovas, in this case one ought to apply
the principle of legitimate expectations.
The representative of the Seimas points out that a
municipal council member begins to hold his office, i.e.
acquires the powers of a municipal council member, only at the
first sitting of the municipal council. In the opinion of P.
Papovas, the provisions of the law concerning the decision to
hold the previous office until the first sitting of the council
and those concerning the dismissal from office after one begins
to hold the office of a council member, do not contradict each
other. According to the representative of the Seimas, the
provision "an elected member of the council, who has decided to
refuse the mandate of a member of the council, not later than
10 days from the first sitting of the municipal council shall
hand in an application to the Central Electoral Commission, or
shall send it to the said commission as confirmed by the
notary, on the refusal of the mandate of a member of the
municipal council" of Paragraph 2 of Article 881 of the Law on
Elections to Municipal Councils provides for the procedure for
the refusal of the mandate of a municipal council member and
the time before the first sitting of the council. According to
P. Papovas, the provision consolidated in Paragraph 2 of
Article 4 of the Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 881 that the norms of
Paragraph 2 of Article 881 of the Law on the Elections to
Municipal Councils concerning the refusal of the mandate of a
municipal council member by a person elected as a municipal
council member until the first sitting of the municipal council
are applied from the elections to municipal councils of the
next term of office do not deny an opportunity for a person
elected as a municipal council member to refuse the mandate of
a municipal council member before the first sitting; besides,
this norm is of one-time character. The representative of the
Seimas notes that if one does not refuse the office of the
municipal council member until the first sitting of the
council, the Central Electoral Commission has the cause to
recognise, within 15 days, the powers of the municipal council
member to be terminated. Thus, according to the assessment by
P. Papovas, the legislator, while adopting the provision not to
apply the norms of Paragraph 2 of Article 881 to the members of
municipal councils of the 2003-2007 term of office concerning
the refusal of the mandate of a municipal council member by a
person elected as a municipal council member until the first
sitting of the municipal council virtually did not deny an
opportunity to do so in a voluntary manner, also, it did not
deny the constitutional principle of the prohibition of a
double mandate nor the prohibition to be a municipal council
member and at the same time to hold office incompatible with
the office of a council member.
In the opinion of the representative of the Seimas, while
adopting the disputed provision of the Law, the Seimas did not
violate the provisions of Paragraphs 1 and 2 of Article 5,
Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60
of the Constitution.
2. The representative of the party concerned P. Žukauskas
notes in his explanations that the disputed norm of Paragraph 2
of Article 4 of the Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 881 which provides for
exceptions for the prohibition of the compatibility of the
office of a municipal council member and a person, who,
according to his office, discharges the functions of
implementation of state power or who has the right to control
or supervise the activity of municipalities, is not directly
related to Paragraph 1 of Article 5 of the Constitution.
Paragraph 1 of Article 5 of the Constitution consolidates the
principle of division of powers and establishes the list of
institutions implementing state power. This provision of the
Constitution does not encompass the legal relations of local
self-government or legal regulation of the status of the
officials implementing state power, therefore, in the opinion
of the representative of the Seimas, the disputed norm of the
law should not be considered as conflicting with Paragraph 1 of
Article 5 of the Constitution.
While assessing the relation of the disputed norm with the
provisions of Paragraph 1 of Article 7 and Paragraphs 1 and 2
of Article 107 of the Constitution, the representative of the
party concerned maintains that, after the disputed legal norm
had been adopted, one did not create a legal situation by which
one would have attempted to overcome or overrule the decision
of the Constitutional Court or to adopt a clearly
anti-constitutional legal norm. P. Žukauskas draws one's
attention to the fact that the Constitutional Court did not
consider the constitutionality of the Law on the Elections to
Municipal Councils and that in its ruling of 24 December 2002
it did not discuss the procedure, terms etc. of the refusal of
the mandate.
The representative of the party concerned also underlines
that while assessing the compliance of the disputed norm with
the Constitution, one has to assess not only its relations with
individual provisions of the Constitution. Paragraph 1 of
Article 6 of the Constitution contains the provision that "the
Constitution shall be an integral and directly applicable act".
The Constitution consolidates one of the fundamental principles
of constitutional law and of law in general, which is the
principle of a state under the rule of law, which implies,
among other things, legal certainty and stability as well as
protection of legitimate expectations. According to the
representative of the Seimas, by the disputed norm one
attempted to state the aim of the legislator to evade a legal
situation in which the legal status of the persons elected as
municipal council members during the 2002 municipal council
elections would become a matter of different legal regulation.
Thus, the legitimate expectations of the residents who had made
use of both the active and passive electoral right would
virtually have been disregarded, the results of the elections
to municipal councils would have been distorted and the
formation of the municipal councils would have been disarrayed.
Having established that candidates for the municipal councils
of the next term of office have to be aware already prior to
the elections that they must refuse the work incompatible with
the office of a municipal council member, the Seimas attempted
to follow the principles of a harmonious civil society and
state under the rule of law and those of democracy, which are
expressed in the Constitution; the legislator showed that he
was willing to follow the provision that in a state under the
rule of law democratic standards are also expressed by the fact
that one cannot establish any procedures, which would violate
democratic standards on a level or in part) of the state.
The 2002 municipal council elections took place in the legal
situation in which the laws did not establish any procedure for
a loss of the mandate of a municipal council member due to the
incompatibility qualification, therefore the regulation of the
formation of municipal councils under different standards would
distort the will of the voters and the principle of equal
elections.
Taking account of the motives of the legislator at the
time of the adoption of the disputed norm of the law, the
representative of the Seimas believes that Paragraph 2 of
Article 4 of the Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 881 is not in conflict
with the Constitution as an integral and directly applicable
act, thus, also with Paragraph 2 of Article 5, Paragraph 4 of
Article 59 and Paragraphs 1 and 2 of Article 60 of the
Constitution.
3. The representative of the Government, the party
concerned, R. Budbergytė notes as to the compliance of the
disputed Government resolution with the Constitution and the
Law "On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" that the
principle lex retro non agit is related with the validity of
only normative legal acts but not with that of individual legal
acts, since only normative legal acts formulate a common rule
of conduct the compliance with which cannot be applied to a
person at the time of his activity as to a rule of conduct that
he is not aware of.
The representative of the Government points out that no
rule of general conduct is formulated by the disputed
Government resolution: it is designed for a concrete subject,
i.e. G. Paviržis, Chief of the Vilnius County; this resolution
does not regulate general relations, but it decides a
particular situation, i.e. the end of service of a concrete
public servant. Thus, in the opinion of R. Budbergytė,
Government resolution No. 457 of 11 April 2003 may not be held
a normative legal act in whose regard the principle of
prohibition of retroactive validity of the law is applicable.
According to the representative of the Government, it is
not permitted to apply the principle of prohibition of
retroactive validity of the law to individual acts of
application of law, since they, as a rule, regulate legal
relations of the past.
In the opinion of R. Budbergytė, since the disputed
Government resolution is an individual act of application of
law, its legality is determined not by its compliance with the
Constitution, laws and other legal acts, but by just and lawful
application of the said legal act to the legal relations
regulated by it. Therefore, in the opinion of the
representative of the Government, the said resolution is in not
conflict with the principle of a state under the rule of law
entrenched in the Preamble to the Constitution.
In the explanations of the representative of the party
concerned it is also noted that the Government, while
implementing the competence established to it by laws, must
state its will not only in deciding the affairs of state
administration, but also regulating other relations, which are
or can be the basis of the administration of state governance.
According to R. Budbergytė, the disputed resolution of the
Government was deciding not affairs of state administration but
regulated legal relations of public service, which are the
basis of state administration.
The representative of the Government also notes that the
basis of the adoption of the Government resolution of 11 April
2003 was the application of 7 April 2003 by G. Paviržis,
Vilnius County Chief, which was grounded on the fact that he
had been elected a member of the municipal council of the
Vilnius city, and the protocol decision of the 9 April 2003
Government sitting, stating that one has "to take account of
the information submitted by the Minister of the Interior J.
Bernatonis, that G. Paviržis, Vilnius County Chief, submitted
his application to the Prime Minster requesting to dismiss him
from the office of the Chief of the Vilnius County, as he is
elected to the municipal council of Vilnius city, while the
draft resolution of the Government of the Republic of
Lithuania, formalising this dismissal shall be presented for
the nearest sitting of the Government of the Republic of
Lithuania" (question 14 of sitting protocol No. 16).
In the opinion of R. Budbergytė, the Constitutional Court,
when it held in its ruling of 29 November 2001 that "only one
type of legal acts of the Government that it is entitled to
adopt, while resolving the affairs of sate administration, is
established in the Constitution, which is a resolution",
emphasised that the will of the Government is stated when it
implements affairs of state administration, but not to regulate
the (labour) relations of public service, which are or can be
the basis of administration of state governance. The
representative of the Government maintains that the Government,
while deciding the issue of dismissal of the Chief of the
Vilnius County, i.e. when it was expressing its will in the
field of the legal relations of public service, it was not
necessarily supposed to be expressed by adopting a resolution
and, since the said resolution is an individual act of
application of law, the will expressed by the Government should
not and could not be prospective, as the said resolution
regulated legal relations of the past.
The representative of the Government maintains that the
Government expressed its will as regards the dismissal of the
Chief of the Vilnius County by adopting the aforesaid protocol
decision, which, subsequently, i.e. at the 11 April 2003
sitting, was formalised by a Government resolution, which was
published in the official gazette Valstybės žinios and went
into effect under the conditions and procedure set down in
Paragraph 1 of Article 9 of the Law "On the Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts".
In the opinion of R. Budbergytė, Government Resolution No.
457 of 11 April 2003 is not in conflict with Paragraph 1 of
Article 9 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
IV
1. At the Constitutional Court hearing, the representative
of the petitioner N. Šidagienė, the representatives of the
parties concerned P. Papovas, P. Žukauskas and R. Budbergytė
virtually reiterated the arguments set forth in their written
explanations and presented additional explanations.
2. N. Šidagienė, the representative of the Vilnius
Regional Administrative Court, emphasised that the petitioner
does not dispute the constitutionality of the amendments of
Articles 86 and 881 of the Law on the Elections to Municipal
Councils, which were adopted on 28 January 2003, however, after
one had established by Paragraph 2 of Article 4 of the Law on
the Supplement and Amendment of Articles 86 and 87 of the Law
on the Elections to Municipal Councils and Its Supplement with
Article 881 that the beginning of the application of the said
amendments, which changed the legal regulation that had been in
conflict with the Constitution, was to be postponed until the
election of municipal councils of the next term of office, one
created an opportunity to apply the former unconstitutional
legal regulation, which existed until 28 January 2003.
3. P. Papovas, a representative of the Seimas, the party
concerned, explained that the provision of Paragraph 2 of
Article 4 of the Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 881, which is disputed
by the petitioner, granted the right to the persons which hold
the office incompatible with the office of a municipal council
member to participate in the first sitting of newly elected
municipal councils.
4. P. Žukauskas, a representative of the Seimas, the party
concerned, explained that the elections to the municipal
councils of the 2003-2007 term of office had taken place before
the adoption of the Constitutional Court ruling of 24 December
2002 in which it was held that that the Constitution
consolidates the principle of prohibition of a double mandate.
In the opinion of P. Žukauskas, if one starts to apply this
principle to the persons who have been elected without applying
this principle, one would distort the will of the voters for
municipal councils and violate their legitimate expectations.
According to the representative of the Seimas, by the provision
of the Law, which is disputed by the petitioner, the legislator
attempted to protect legitimate expectations.
5. R. Budbergytė, the representative of the Government,
the party concerned, explained that, in her opinion, the
Government can decide the question of dismissal of the chief of
a county from office by adopting a so-called protocol decision
(i.e. a decision, which is formalised by entering it into the
minutes of the Government sitting). According to the
representative of the Government, G. Paviržis was dismissed
form the office of the Chief of the Vilnius County by the
"protocol decision" of 9 April 2003.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 2 of Article 4 of the Law
on the Supplement and Amendment of Articles 86 and 87 of the
Law on the Elections to Municipal Councils and Its Supplement
with Article 881 with Paragraphs 1 and 2 of Article 5,
Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60
of the Constitution.
1. On 28 January 2003, the Seimas adopted the Republic of
Lithuania Law on the Supplement and Amendment of Articles 86
and 87 of the Law on the Elections to Municipal Councils and
Its Supplement with Article 881, which provides:
"Article 1. Supplement of Article 86 with Item 9
To supplement Article 86 with Item 9:
"9) if a council member takes the office or does not
refuse the office incompatible with the office of a municipal
council member."
Article 2. Amendment of Paragraph 1 of Article 87
After the word "terminated" in Paragraph 1 of Article 87,
to enter the words "or he loses the mandate of a council
member" and set forth this paragraph as follows:
"1. A vacant position of a council member occurs if the
powers of the council member are recognised as terminated or he
loses the mandate of a council member. It is occupied in the
following way: the first candidate who did not receive the
mandate, from the post-elections candidate list according to
which the former council member had been elected, shall become
a council member. If there are no more candidates who did not
receive the mandate on this list, the mandate of a council
member shall be transferred to another list according to the
order of succession of the lists of candidates made after the
election for the distribution of mandates by the method of
remainders, i.e., the list which comes first following the list
which was the last to receive its mandate according to this
order of succession, and the first candidate who has not
received his mandate and who appears on the list with the
newly-received mandate shall become a council member. The
Central Electoral Commission must adopt the decision concerning
recognition of the mandate of a council member for a new
council member within 7 days after the occurrence of the vacant
seat in the council."
Article 3. Supplementing Article 881 to the Law
To supplement the Law with Article 881:
"Article 881. The office incompatible with the office of a
municipal council member, and the loss of the mandate of a
council member
1. The office of a council member shall be incompatible
with the office of the President of the Republic, a member of
the Seimas, a member of the Government, or of a state official
who, under the Constitution and laws, enjoys the powers to
control or supervise activities of municipalities, also with
the office of the county chief, deputy county chief, the
controller of the municipality, a public servant of the service
of the controller of the municipality, director of the
municipal administration and his deputy or a public servant of
the municipal administration.
2. If a person, when holding the office specified in
Paragraph 1 of this Article, is elected a municipal council
member or, being a municipal council member holds or begins to
hold the office specified in Paragraph 1 of this Article, he
must make a choice and refuse either this office, or the
mandate of a municipal council member. An elected member of the
council, who has decided to refuse the mandate of the council
member, not later than 10 days until the first sitting of the
municipal council shall hand in an application to the Central
Electoral Commission, or shall send it as confirmed by the
notary, on the refusal of the mandate of a municipal council
member. Upon receiving the application, the Central Electoral
Commission by the rights of the mandate commission shall, not
later than 7 days until the first sitting of the municipal
council, adopt a decision concerning the loss of the mandate of
a municipal council member and recognition of the mandate of a
new council member. Candidates to a vacant seat of a council
member from the post-electoral list who have decided to refuse
the mandate of a council member, must also hand in an
application to the Central Electoral Commission concerning the
refusal of the mandate of a municipal council member not later
than 7 days until the first sitting of the municipal council.
The Central Electoral Commission shall adopt a decision
concerning a person who enjoys the powers of a council members
and holds or begins to hold the office incompatible with the
office of a municipal council member, according to the
procedure consolidated in Articles 86 and 87 of this Law."
Article 4. Final provisions
1. This Law shall come into force on 25 February 2003.
2. The norms of Paragraph 2 of Article 881 of the Law on
the Elections to the Municipal Council as stipulated in Article
3 of the Law concerning the refusal of the mandate of a council
member by a person elected as a municipal council member until
the first sitting of the municipal council shall be applied
from the elections to the municipal councils of the next term
of office."
2. The petitioner requests to investigate whether
Paragraph 2 of Article 4 of the Law on the Supplement and
Amendment of Articles 86 and 87 of the Law on the Elections to
Municipal Councils and Its Supplement with Article 881 which
provides that the norms of Paragraph 2 of Article 881 of the
Law on the Elections to Municipal Councils concerning the
refusal of the mandate of a municipal council member by a
person elected as a municipal council member until the first
sitting of the municipal council are applied from the elections
to municipal councils of the next term of office is not in
conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of
Article 59 and Paragraphs 1 and 2 of Article 60 of the
Constitution of the Republic of Lithuania.
3. It is clear from the case material that the said law
was adopted as the reaction to the 24 December 2002
Constitutional Court 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".
It was held in the Constitutional Court ruling of 24
December 2002 that, according to the Constitution, state
administration and local self-government are two systems of
public authority, that 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, that the Constitution
consolidates the principle of prohibition of a double mandate,
that 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. It was also stated in the said ruling of the
Constitutional Court that in cases when there occurs a legal
situation when 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.
It has to be noted that the wording "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", employed in the Constitutional Court ruling
of 24 December 2002, means that before the newly elected
municipal council convenes to the first sitting, the person
must, according to the procedure established by laws, declare
his decision either to remain in office or to be a member of
the municipal council, also that before the newly elected
municipal council convenes to the first sitting, the question
of the legal status of this person must be decided: if the
person has decided to be a member of the municipal council,
then, before the newly elected municipal council convenes to
the first sitting, it must be stated, under the procedure
established by laws, that he has lost his office which was
incompatible with the office of a member of the municipal
council, but if the person has decided to remain in office and
not to be a member of the municipal council then, before the
newly elected municipal council convenes to the first sitting,
it must be stated, under the procedure established by laws,
that he has lost the mandate of a member of the municipal
council. The law must establish the legal regulation, according
to which the said question of the legal status of the person is
decided before the newly elected municipal council convenes to
the first sitting.
4. Paragraph 2 of Article 4 of the Law on the Supplement
and Amendment of Articles 86 and 87 of the Law on the Elections
to Municipal Councils and Its Supplement with Article 881
establishes the procedure of application of the norms of
Paragraph 2 of Article 881 of the Law on Elections to Municipal
Councils which are stipulated in Article 3 of the Law. Thus,
the provisions of Paragraph 2 of Article 4 and those stipulated
in Article 3 of the Law are inseparable, therefore, the content
of disputed Paragraph 2 of Article 4 of the law should be
construed, while taking account of the provisions of Article
881 of the Law on Elections to Municipal Councils provided by
Article 3 of the Law.
4.1. It has been mentioned that the legislator
supplemented the Law on Elections to the Municipal Councils
with Article 881 by Article 3 of the Law and established by
Article 1 that the office of a member of the municipal council
shall be incompatible with the office of the President of the
Republic, a member of the Seimas, a member of the Government,
or of a state official who, under the Constitution and laws,
enjoys the powers to control or supervise activities of
municipalities, also with the office of the county chief,
deputy county chief, the controller of the municipality, a
public servant of the service of the controller of the
municipality, director of the municipal administration and his
deputy or a public servant of the municipal administration.
In Paragraph 2 of Article 881 of the Law on Elections to
the Municipal Councils, the legislator inter alia consolidated
the provisions which obligate the person, who holds the office
specified in Paragraph 1 of this article and is elected as a
member of the municipal council, to make a choice and refuse
either this office, or the mandate of a member the municipal
council, and established that "an elected member of the
council, who has decided to refuse the mandate of the council
member, not later than 10 days until the first sitting of the
municipal council shall hand in an application to the Central
Electoral Commission, or shall send it as confirmed by the
notary, on the refusal of the mandate of a municipal council
member. Upon receiving the application, the Central Electoral
Commission by the rights of the mandate commission shall, not
later than 7 days until the first sitting of the municipal
council, adopt a decision concerning the loss of the mandate of
a municipal council member and recognition of the mandate of a
new council member".
Thus, the said provisions of Paragraph 2 of Article 881
obligate the person who is elected as a member of the municipal
council and who holds the office incompatible with the office
of a council member to refuse either this office or the mandate
of a member of the municipal council before the newly elected
municipal council convenes to the first sitting.
4.2. It has been mentioned that Paragraph 2 of Article 4
of the Law provides that the provisions of Paragraph 2 of
Article 881 of the Law on Elections to Municipal Councils
concerning the refusal of the mandate of a council member by a
person elected as a municipal council member until the first
sitting of the municipal council shall be applied from the
elections to the municipal councils of the next term of office.
While construing the content of legal regulation
established by Paragraph 2 of Article 4 of the Law, one should
pay attention to the fact that the Law came into force on 25
February 2003. The elections to the municipal councils of the
2003-2007 term of office were held on 22 December 2002. It
should be noted that upon the entry into force of this law, the
first sittings of the newly elected municipal councils of the
2003-2007 term of office had not been held yet.
Thus, the legal regulation established by Paragraph 2 of
Article 4 of the Law means that a person elected to the
municipal council during the elections to the municipal
councils of the 2003-2007 term of office, whose office is
incompatible with the office of a member of the municipal
council and who has "decided to refuse the mandate of a member
of the municipal council" under Article 3 of the Law, need not
declare his decision to refuse the mandate of a member of the
municipal council before the first sitting of the newly elected
municipal council, and that it need not be stated before the
first sitting of the newly elected municipal council that the
person in question has lost the mandate of a member of the
municipal council. Alongside, this legal regulation implies
that the President of the Republic, a member of the Seimas, a
member of the Government, a state official who, under the
Constitution and laws, enjoys the powers to control or
supervise activities of municipalities, also the county chief,
deputy county chief, the controller of the municipality, a
public servant of the service of the controller of the
municipality, director of the municipal administration and his
deputy or a public servant of the municipal administration may
keep their office and be members of the municipal council if
they are elected as members of the municipal councils.
Thus, the application of the provision of Paragraph 1 of
Article 881 of the Law on Elections to the Municipal Councils
is in fact postponed by the legal regulation provided for by
Paragraph 2 of Article 4 of the Law until the elections to the
municipal councils of the next term of office.
5. The Constitution shall be an integral 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.
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 (Constitutional Court ruling
of 24 December 2002).
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.
6. While deciding whether Paragraph 2 of Article 4 of the
Law is not in conflict with the Constitution, one should take
account of the content of state administration and local
self-government, as two systems of public authority, as well as
of the status of a member of the municipal council, and that of
persons specified in Paragraph 1 of Article 881 of the Law on
Elections to the Municipal Councils: the President of the
Republic, a member of the Seimas, a member of the Government, a
state official who, under the Constitution and laws, enjoys the
powers to control or supervise activities of municipalities,
also the county chief, deputy county chief, the controller of
the municipality, a public servant of the service of the
controller of the municipality, director of the municipal
administration and his deputy or a public servant of the
municipal administration, which are consolidated in the
Constitution and/or laws.
7. Under the Constitution, state administration and local
self-government are two systems of public authority.
7.1. The municipality is a community of a territorial
administrative unit of the state established by law, which
enjoys the right of self-government guaranteed by the
Constitution. In it ruling of 18 February 1998 the
Constitutional Court held that the Constitution determines
local self-government as a public administration system
operating on the basis of self-action principles, and which is
not directly subordinate to state authority institutions.
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, should be assessed as
a guarantee of the participation of these local communities in
administration of these territories (Constitutional Court
ruling of 28 June 2001).
Local self-government is the power of communities of
administrative territorial units established by the law, which
is formed and operates on different constitutional grounds than
state administration. The Constitution does not identify
self-government with state administration (Constitutional Court
rulings of 14 January 2002 and 24 December 2002). State
administration and local self-government, as two systems of the
implementation of public authority, are interrelated, however,
each of them implements its characteristic functions.
State administration shall be implemented through the
establishments of state power, other institutions specified by
the Constitution and laws. The right of self-government shall
be implemented through corresponding municipal councils
(Paragraph 1 of Article 119 of the Constitution). The municipal
councils, as self-government institutions, are representative
institutions, the members of which are elected by the residents
of an administrative unit. The municipal councils are
institutions through which the right of self-government of
corresponding communities is implemented, while the members of
the municipal council are representatives of a corresponding
territorial community. They possess the mandate of this
territorial community.
7.2. Paragraph 1 of Article 5 of the Constitution provides
that in Lithuania, the Seimas, the President of the Republic
and the Government, and the Judiciary, shall execute State
power.
7.2.1. Under Paragraph 1 of Article 55 of the
Constitution, the Seimas shall consist of representatives of
the Nation-members of the Seimas. The constitutional status of
a member of the Seimas, a representative of the Nation, means
that a member of the Seimas is not a representative of any
territorial community, a community or group of the citizens, a
political party or some other organisation; he represents the
whole Nation. The status of a member of the Seimas, a
representative of the Nation, arises from the provisions of the
Constitution that the State of Lithuania shall be an
independent democratic republic (Article 1), that the Nation
shall execute its supreme sovereign power either directly or
through its democratically elected representatives (Article 4),
etc. The essential element of the status of a Seimas member, as
a representative of the Nation, is the free mandate.
While interpreting Paragraph 4 of Article 59 of the
Constitution, providing that 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, the Constitutional Court in
its rulings of 26 November 1993 and 25 January 2001 stated that
the Constitution consolidates the free mandate of a member of
the Seimas and does not recognise the imperative mandate.
The essence of the free mandate is that a representative
of the Nation is free to implement the rights and duties vested
in him without restricting this freedom by mandates of the
electorate, political requirements of parties or organisations
which have promoted him. The free mandate also means that the
voters have no right to recall a member of the Seimas. A
pre-term recall of a member of the Seimas would constitute one
of the elements of the imperative mandate. The Constitution
prohibits the imperative mandate. Democratic states do not
recognise the imperative mandate of a parliament member, thus,
also the possibility of a pre-term recall of a parliament
member from his office does not exist.
It is also noteworthy that the Constitution consolidates
the immunity of a Seimas member in order that members of the
Seimas as representatives of the Nation might discharge their
duties without any hindrance. Article 62 of the Constitution
provides that the person of a member of the Seimas shall be
inviolable; a member of the Seimas may not be held criminally
liable, arrested, or have his freedom otherwise restricted
without the consent of the Seimas (Paragraphs 1 and 2 of
Article 62).
Under 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). A member of the Seimas
may not receive any other remuneration (save that of the member
of the Seimas), with the exception of remuneration for creative
activities (Paragraph 3 of Article 60 of the Constitution).
Thus, the Constitution consolidates the principle of
prohibition of a double mandate: a member of the Seimas, as a
representative of the Nation, may not be a representative of a
territorial community, i.e. a member of the municipal council,
at the same time.
The legal regulation according to which the same person
could be both a member of the Seimas and a member of the
municipal council at the same time would be in conflict with
Article 4, Paragraph 4 of Article 59, Paragraphs 1 and 2 of
Article 60, Paragraph 1 of Article 119 and Paragraph 2 of
Article 120 of the Constitution.
7.2.2. According to Article 77 of the Constitution, the
President of the Republic shall be the Head of State; he shall
represent the State of Lithuania and shall perform everything
that he is charged with by the Constitution and laws.
Only one person, i.e. the President of the Republic, who
is elected by the citizens of the Republic of Lithuania,
acquires the status of the Head of State for the term
established by the Constitution. Under the Constitution, the
legal status of the President of the Republic, as the Head of
State, differs from the legal status of all other state
officials (Constitutional Court ruling of 19 June 2002).
The individual and exceptional legal status of the
President of the Republic, as the Head of State, is disclosed
by various norms of the Constitution, provisions of Paragraph 1
of Article 83 amongst them according to which 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.
It should be noted that the Constitution establishes the
immunity of the President of the Republic in order that the
President of the Republic might discharge the functions of the
Head of State without any hindrance. Paragraph 1 of Article 86
of the Constitution establishes that the person of the
President of the Republic shall be inviolable; while in office,
he may neither be arrested nor be held criminally or
administratively liable.
Thus, according to the Constitution, the same person may
not be both the President of the Republic and a member of the
municipal council at the same time.
The legal regulation according to which the same person
could be both the President of the Republic and a member of the
municipal council at the same time would be in conflict with
Paragraph 1 of Article 83, Paragraph 1 of Article 119 and
Paragraph 2 of Article 120 of the Constitution.
7.2.3. Under the Constitution, the Government is a joint
institution of executive power which is composed of the Prime
Minister and Ministers.
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 that that established
for their respective Government offices and payment for
creative activities (Article 99 of the Constitution). According
to Paragraph 2 of Article 60 of the Constitution, the Prime
Minister and Ministers may be members of the Seimas at the same
time.
It is also noteworthy that the Constitution establishes
the immunity of the Prime Minister and Ministers so that the
Government might discharge the duties assigned to it by the
Constitution and laws without any hindrance. Article 100 of the
Constitution provides that the Prime Minister and Ministers may
not be held criminally liable, arrested, and otherwise
restricted of their freedom without the prior consent of the
Seimas, while between sessions of the Seimas-without the prior
consent of the President of the Republic.
Thus, according to the Constitution, the same person may
not be both a member of the Government and a member of the
municipal council at the same time.
The legal regulation, according to which the same person
could be both a member of the Government and a member of the
municipal council at the same time would be in conflict with
Article 99, Paragraph 1 of Article 119 and Paragraph 2 of
Article 120 of the Constitution.
7.2.4. Paragraph 1 of Article 109 of the Constitution
establishes that in the Republic of Lithuania, justice shall be
administered solely by courts. Under Paragraph 2 of this
article, while administering justice, the judge and courts
shall be independent.
Paragraph 1 of Article 113 of the Constitution provides:
"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".
One of the guarantees of independence of judges,
consolidated by the Constitution, is the immunity of judges.
Paragraph 2 of Article 114 of the Constitution provides that
the judge may not be criminally liable, arrested, or otherwise
restricted of his freedom without the consent of the Seimas, or
between sessions of the Seimas, of the President of the
Republic.
Thus, according to the Constitution, the same person may
not be both a judge and a member of the municipal council at
the same time.
The legal regulation according to which the same person
could be both a judge an a member of the municipal council at
the same time would be in conflict with Paragraph 1 of Article
113, Paragraph 1 of Article 119 and Paragraph 2 of Article 120
of the Constitution.
7.3. It has been mentioned that the Constitution
consolidates immunities for the President of the Republic,
members of the Seimas, members of the Government and judges so
that they might discharge functions of implementation of state
power assigned to them by the Constitution: such immunities are
inviolability of the person and a special procedure for
bringing to criminal and/or administrative responsibility.
According to the Constitution, members of municipal councils do
not enjoy the said immunities. Under the Constitution, a legal
situation when members of the municipal councils are persons,
who possess the said immunities, is impossible; members of the
municipal councils may not be unequal according to their legal
status (Constitutional Court ruling of 24 December 2002).
8. It has been mentioned that Paragraph 1 of Article 881
of the Law on Elections to the Municipal Councils provides that
the office of a member of the municipal council shall be
incompatible with the office of a state official who, under the
Constitution and laws, enjoys the powers to control or
supervise activities of municipalities, also with the office of
the county chief, deputy county chief, the controller of the
municipality, a public servant of the service of the controller
of the municipality, director of the municipal administration
and his deputy or a public servant of the municipal
administration.
8.1. Under to the Constitution, state officials who,
according to the Constitution and laws, enjoy the powers to
control or supervise activities of municipalities, may not be
members of the municipal councils (Constitutional Court ruling
of 24 December 2002).
The formula "state officials who, according to the
Constitution and laws, enjoy the powers to control or supervise
activities of municipalities" should be construed as comprising
also those state officials on whose decisions depends the
implementation of the competence of the municipal councils
provided for by the Constitution.
8.1.1. Paragraphs 2 and 3 of Article 123 of the
Constitution provide:
"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 powers of the Government representative and the
procedure of their execution shall be established by law."
Since the Government representatives, under the
Constitution, are empowered to supervise the activities of the
municipal councils, they may not be members of the municipal
councils at the same time.
The legal regulation according to which the same person
could be both the Government representative and a member of the
municipal council at the same time would be in conflict with
Paragraph 1 of Article 119, Paragraph 2 of Article 120 and
Paragraph 2 of Article 123 of the Constitution.
8.1.2. Paragraph 1 of Article 134 of the Constitution
provides that State Control shall supervise the lawfulness of
the possession and use of state-owned property and the
execution of the State Budget (Paragraph 2 of Article 133 of
the Constitution).
The system and powers of State Control shall be
established by law (Paragraph 1 of Article 133 of the
Constitution).
Under Paragraph 2 of Article 9 of the Republic of
Lithuania Law on State Control, the State Control shall have a
right to audit the implementation of municipal budgets; the
State Control shall perform audit of the management, use and
disposal of municipal property in accordance with the scope of
government auditing as defined in Paragraph 2 of Article 14 of
this law. Paragraph 1 of Article 13 of the same law provides
that the State Control shall carry out financial and activity
audit, while Item 1 of Paragraph 2 of Article 14 specifies that
municipalities are one of the subjects of activity audit.
As the State Controller is empowered to control and
supervise the activities of the municipal councils, he may not
be a member of the municipal council at the same time.
The legal regulation according to which the same person
could be both the State Controller and a member of the
municipal council at the same time would be in conflict with
Paragraph 1 of Article 119, Paragraph 2 of Article 120 and
Paragraph 1 of Article 134 of the Constitution.
8.2. Under Paragraph 1 of Article 123 of the Constitution,
in higher level administrative units, the administration shall
be organised by the Government in accordance with the procedure
established by law. In its ruling of 18 February 1998, the
Constitutional Court held that local government is execution of
state administration functions (i.e. executive power) in
localities, i.e. in corresponding administrative units.
Under Paragraph 1 of Article 1 of the Republic of
Lithuania Law on the Governing of the County, the county is a
higher territorial administrative unit of the Republic of
Lithuania, the governing of which shall be organised by the
Government through the chief of the county, the Ministries and
other Government institutions; the government of the county is
a constituent part of state administration. The chief of the
county shall be appointed and dismissed from office by the
Government upon presentation by the Prime Minister (Paragraph 1
of Article 4 of the Law on the Governing of the County, Item 14
of Article 22 of the Law on the Government). For the discharge
of the functions assigned to him, the chief of the county shall
form and run the administration (Paragraph 1 of Article 18 of
the Law on the Governing of the County).
Thus, according to the laws, the chief of the county is a
state official through which the Government organises state
administration of a higher administrative unit (county). In the
absence of the chief of the county, his duties shall be
executed by the deputy chief of the county (Paragraph 2 of
Article 19 of the Law on the Governing of the County).
It has been mentioned that, under the Constitution, state
administration and local self-government are two systems of
public authority. State administration is executed through the
establishments of state power, other state institutions
specified by the Constitution and laws. The right of
self-government is implemented through corresponding municipal
councils.
According to the Constitution, municipalities shall act
freely and independently within their competence, which shall
be established by the Constitution and laws (Paragraph 2 of
Article 120 of the Constitution).
It should also be noted that, according to the laws, the
chief of the county is empowered to adopt decisions, on which
belongs the implementation of the competence of the municipal
councils, which is provided for by the Constitution and laws.
Since the chief of the county is a state official, through
which the Government organises the state governing of a higher
administrative unit (county), and, under the laws, the chief of
the county is empowered to adopt decisions on which belong the
implementation of the competence of the municipal councils,
which is provided for by the Constitution and laws, the chief
of the county (his deputy) may not be a member of the municipal
council at the same time.
The legal regulation according to which the same person
could be both the chief of the county (the deputy chief of the
county) and a member of the municipal council at the same time
would be in conflict of Paragraph 1 of Article 119, Paragraph 2
of Article 120 and Paragraph 1 of Article 123 of the
Constitution.
8.3. The Constitution consolidates the principle of
superiority of municipal councils in regard to the executive
bodies which are accountable to the former. This principle
inter alia means that 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 (Constitutional Court ruling of 24 December
2002).
Paragraph 3 of Article 3 of the Republic of Lithuania Law
on Local Self-Government provides that the director of the
municipal administration shall be the executive institution of
the municipality. Under Paragraph 2 of Article 29 of this law,
the director of the municipal administration is the head of the
establishment subordinate to the municipal council and
accountable to the mayor. The municipal administration is a
municipal establishment which consists of structural and
structural-territorial divisions-neighbourhoods (branch
offices), civil servants and other public servants not included
into structural divisions (Paragraph 1 of Article 29).
Paragraph 4 of Article 29 of the same law provides that the
municipal council shall decide on the establishment of the
office of the deputy director of the administration or the
substitution of the director of the administration. Servants of
the municipal administration shall be accountable to the
director of the municipal administration (Paragraph 8 of
Article 29).
Since, under the Constitution, the executive bodies
accountable to municipal councils may not be formed from among
members of the municipal councils which establish them, the
director of the municipal administration, his deputy, and a
public servant of the municipal administration may not be
members of the municipal council at the same time.
The legal regulation according to which the same person
could be the director of the municipal administration, his
deputy, a public servant of the municipal administration and,
at the same time, a member of the municipal council would be in
conflict with Paragraphs 1 and 4 of Article 119 of the
Constitution.
8.3.2. The Law on Local Self-Government provides for an
institution of control of the municipality-the municipality
controller who controls the use of the municipal budget and
discharges the functions of internal audit of the municipality
(Paragraph 4 of Article 3, Paragraph 1 of Article 27).
Paragraph 1 of Article 27 of this law provides that this
institution shall be accountable to the municipal council.
For the discharge of the functions of the municipal
control institution, the municipal council may establish (in
case the number of residents of the municipality exceeds 30
thousand people, it must establish) an office of the controller
of the municipality which is run by the controller of the
municipality (Paragraph 2 of Article 27). Paragraph 1 of
Article 28 of the same law provides that the controller of the
municipality (the service of the controller of the
municipality) shall supervise whether the use of the municipal
budget funds, other property of the municipality and state
property, transferred to the municipality, is lawful, expedient
and effective.
As the controller of the municipality and a public servant
of the service of the controller of the municipality are
officials of the institutions accountable to the municipal
council, they may not be members of the municipal councils at
the same time.
The legal regulation according to which the same person
could be the controller of the municipality or a public servant
of the office of the controller of the municipality and, at the
same time, a member of the municipal council would be in
conflict with Paragraphs 1 and 4 of Article 119 of the
Constitution.
9. It has been mentioned that the legal regulation
established by Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 means that a person elected to the municipal
council during the elections to the municipal councils of the
2003-2007 term of office, whose office is incompatible with the
office of a member of the municipal council and who has
"decided to refuse the mandate of a member of the municipal
council" under Article 3 of the Law, need not declare his
decision to refuse the mandate of a member of the municipal
council before the first sitting of the newly elected municipal
council, and it need not be stated before the first sitting of
the newly elected municipal council that the person in question
has lost the mandate of a member of the municipal council;
alongside, this legal regulation implies that the President of
the Republic, a member of the Seimas, a member of the
Government, a state official who, under the Constitution and
laws, enjoys the powers to control or supervise activities of
municipalities, also the county chief, deputy county chief, the
controller of the municipality, a public servant of the service
of the controller of the municipality, director of the
municipal administration and his deputy or a public servant of
the municipal administration may keep their office and be
members of the municipal council if they are elected as members
of the municipal councils; such legal regulation means that the
application of the provision of Paragraph 1 of Article 881 of
the Law on Elections to the Municipal Councils is in fact
postponed until the elections to the municipal councils of the
next term of office.
10. Taking account of the arguments set forth one is to
conclude that Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 is in conflict with Article 4, Paragraph 4 of
Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of
Article 83, Article 99, Paragraphs 1 and 4 of Article 119,
Paragraph 2 of Article 120, Paragraphs 1 and 2 of Article 123,
and Paragraph 1 of Article 134 of the Constitution.
11. It has been mentioned that the Law on the Supplement
and Amendment of Articles 86 and 87 of the Law on the Elections
to Municipal Councils and Its Supplement with Article 881 was
adopted as a reaction to the Constitutional Court ruling of 24
December 2002 which held that 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, that
the Constitution consolidates the principle of prohibition of a
double mandate, that 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.
11.1. Paragraphs 1 and 2 of Article 107 of the
Constitution provide:
"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.
The decisions of the Constitutional Court on issues
ascribed to its competence by the Constitution shall be final
and not subject to appeal."
Thus, according to the Constitution, after the
Constitutional Court recognises a law (or part thereof), or
other act (or part thereof) of the Seimas, act of the President
of the republic, act (or part thereof) of the Government to be
in conflict with the Constitution, the institutions which had
issued the corresponding act-the Seimas, the President of the
Republic, and the Government-are prohibited from repeatedly
establishing the legal regulation which has been recognised to
be in conflict with the Constitution, by adopting corresponding
laws and other legal acts afterwards. The legal regulation
established by Paragraphs 1 and 2 of Article 107 of the
Constitution also means that the power of the decision (ruling)
of the Constitutional Court may not be overcome by a repeated
adoption of laws or other acts of the Seimas, acts of the
President of the Republic, and acts of the Government.
Paragraph 5 of Article 72 of the Law on the Constitutional
Court establishes that the power of the Constitutional Court to
recognise a legal act or part thereof as unconstitutional may
not be overruled by a repeated adoption of a like legal act or
part thereof.
It should also be noted that, under the Constitution, the
decisions (rulings) of the Constitutional Court are obligatory
to everyone. Acts of the Constitutional Court are a source of
law.
11.2. Under the Constitution, only the Constitutional
Court is empowered to construe the Constitution officially. The
Constitutional Court does so by deciding whether the laws are
not in conflict with the Constitution, whether other acts of
the Seimas are not in conflict with the laws and the
Constitution, whether acts of the President of the Republic and
the Government are not in conflict with the laws and the
Constitution. Paragraph 1 of Article 22 of the Law on the
Constitutional Court provides that the Constitutional Court
shall decide cases in essence by passing rulings.
The Constitutional Court has held that all constituent
parts of the Constitutional Court ruling are interrelated, that
the Constitutional Court ruling constitutes a whole
(Constitutional Court decision of 12 January 2000). Under
Paragraph 2 of Article 56 of the Law on the Constitutional
Court, a ruling of the Constitutional Court must state
arguments upon which the ruling of the Constitutional Court is
based. The principle of a state under the rule of law
consolidated in the Constitution, inter alia implies the
continuity of the jurisprudence (Constitutional Court ruling of
12 July 2001). It means that the Constitutional Court, while
deciding analogous constitutional disputes, observes the
doctrine which was developed in earlier cases and which
discloses the content of the Constitution. While considering
the compliance of laws and other legal acts (or parts thereof)
with the Constitution, the Constitutional Court develops its
concept of constitutional provisions which was presented in its
earlier rulings and other acts, while disclosing new aspects of
the regulation established by the Constitution, which are
necessary for the consideration of a particular case.
11.3. It has been mentioned that, according to the
Constitution, rulings of the Constitutional Court are
obligatory to everyone, that 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, and that the rulings of the
Constitutional Court are final and not subject to appeal.
Taking account of the fact that all constituent parts of
the Constitutional Court ruling are interrelated and constitute
a whole, that a ruling of the Constitutional Court must state
arguments upon which the ruling of the Constitutional Court is
based and present the concept of the provisions of the
Constitution, institutions that adopt the acts-the Seimas, the
President of the Republic, and the Government-while adopting
new, amending and supplementing already adopted laws and other
legal acts, are bound by the concept of the provisions of the
Constitution and other legal arguments presented in the
motivation of the Constitutional Court ruling.
11.4. In its ruling of 24 December 2002, the
Constitutional Court stated that the Constitution consolidates
the principle of prohibition of a double mandate, and that 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. According to the Constitution,
members of the Seimas, the President of the Republic, members
of the Government, judges, as well as state officials who,
under the Constitution and laws, are empowered to control or
supervise the activities of the municipalities, may not be
members of municipal councils. It has also been stated in the
above-mentioned Constitutional Court ruling 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.
It has been mentioned that if a person is elected as a
member of the municipal council, the question of the legal
status of this person must be decided before the first sitting
of the newly elected municipal council: if the person has
decided to be a member of the municipal council, then, before
the newly elected municipal council convenes to the first
sitting, it must be stated, under the procedure established by
laws, that he has lost his office which is incompatible with
the office of a member of the municipal council, but if the
person has decided to remain in office and not to be a member
of the municipal council then, before the newly elected
municipal council convenes to the first sitting, it must be
stated, under the procedure established by laws, that he has
lost the mandate of a member of the municipal council. The law
must establish the legal regulation, according to which the
said question of the legal status of the person would be
decided before the newly elected municipal council convenes to
the first sitting.
11.5. It has been mentioned that the legal regulation
established by Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 means that a person elected to the municipal
council during the elections to the municipal councils of the
2003-2007 term of office, whose office is incompatible with the
office of a member of the municipal council and who has
"decided to refuse the mandate of a member of the municipal
council" under Article 3 of the Law, need not declare his
decision to refuse the mandate of a member of the municipal
council before the first sitting of the newly elected municipal
council, and it need not be stated before the first sitting of
the newly elected municipal council that the person in question
has lost the mandate of a member of the municipal council;
alongside, this legal regulation implies that the President of
the Republic, a member of the Seimas, a member of the
Government, a state official who, under the Constitution and
laws, enjoys the powers to control or supervise activities of
municipalities, also the county chief, deputy county chief, the
controller of the municipality, a public servant of the service
of the controller of the municipality, director of the
municipal administration and his deputy or a public servant of
the municipal administration may keep their office and be
members of the municipal council if they are elected as members
of the municipal councils; such legal regulation means that the
application of the provision of Paragraph 1 of Article 881 of
the Law on Elections to the Municipal Councils is in fact
postponed until the elections to the municipal councils of the
next term of office.
11.6. It has been held in this Ruling of the
Constitutional Court that Paragraph 2 of Article 4 of the Law
is in conflict with Article 4, Paragraph 4 of Article 59,
Paragraphs 1 and 2 of Article 60, Paragraph 1 of Article 83,
Article 99, Paragraphs 1 and 4 of Article 119, Paragraph 2 of
Article 120, Paragraphs 1 and 2 of Article 123, and Paragraph 1
of Article 134 of the Constitution.
The Constitutional Court notes that, upon establishing the
said legal regulation by Paragraph 2 of Article 4 of the Law,
the legislator not only disregarded the prohibition established
by the Constitution for persons who discharge functions of
implementation of state power, as well as for state officials
who, according to the Constitution and laws, are empowered to
control and supervise the activities of the municipalities, and
officials of executive bodies accountable to the municipal
councils, to hold their offices and, at the same time, be
members of the municipal councils. In addition, after
establishing the disputed provisions of Paragraph 2 of Article
4 of the Law, according to which persons who hold the office of
the President of the Republic, a member of the Seimas, a member
of the Government and those holding other offices specified in
Paragraph 1 of Article 881 of the Law on Elections to the
Municipal Councils may hold their office and, at the same time,
be members of the municipal councils, if they are elected as
members of the municipal councils, the Seimas adopted a law
which disregarded the prohibition arising from Paragraphs 1 and
2 of the Constitution to establish repeatedly a like legal
regulation by later adopted laws and other legal acts, which is
incompatible with the concept of the provisions of the
Constitution presented in the Constitutional Court ruling of 24
December 2002.
11.7. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 4 of the Law is in
conflict with Paragraphs 1 and 2 of Article 107 of the
Constitution.
12. It has been mentioned that the petitioner requests to
investigate whether Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86 and 87 of the Law on
the Elections to Municipal Councils and Its Supplement with
Article 881 is not in conflict with Paragraphs 1 and 2 of
Article 5 of the Constitution.
12.1. Paragraphs 1 and 2 of Article 5 of the Constitution
provide:
"In Lithuania, the Seimas, the President of the Republic
and the Government, and the Judiciary, shall execute State
power.
The scope of power shall be limited by the Constitution."
12.2. After one has held that Paragraph 2 of Article 4 of
the Law was in conflict with Paragraph 1 and 2 of Article 107
of the Constitution, it should be held alongside that the
Seimas, upon adopting the Law, disregarded the concept of
constitutional provisions concerning the incompatibility of the
office of a member of the municipal council with other offices
specified in the Constitution and laws, which was formulated in
the Constitutional Court ruling of 24 December 2002, and,
violating Paragraphs 1 and 2 of Article 107 of the
Constitution, while attempting to overcome the power of the
Constitutional Court ruling of 24 December 2002, exceeded the
powers granted to it by the Constitution, as well as violated
the constitutional principle of division of powers.
12.3. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 4 of the Law is in
conflict with Paragraphs 1 and 2 of Article 5 of the
Constitution.
II
On the compliance of Government Resolution No. 457 "On the
Dismissal of the Chief of the Vilnius County" of 11 April 2003
with the constitutional principle of a state under the rule of
law and Paragraph 1 of Article 9 of the Law "On the Procedure
of Publication and Coming Into Force of Republic of Lithuania
Laws and Other Legal Acts".
1. On 11 April 2003, the Government adopted Resolution No.
457 "On the Dismissal of the Chief of the Vilnius County"
wherein the following was established:
"Conforming to Item 14 of Article 22 of the Republic of
Lithuania Law on the Government (Official Gazette Valstybės
žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No.
92-2830) and Item 1 of Paragraph 1 of Article 44 of the
Republic of Lithuania Law on the Public Service (Official
Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708;
No. 127-5750), the Government of the Republic of Lithuania has
decided:
To dismiss Gediminas Paviržis from the office of the Chief
of the Vilnius County as from the date indicated in his
application, according to Item 1 of Paragraph 1 of Article 44
of the Law on Public Service of the Republic of Lithuania."
2. The petitioner requests to investigate whether the said
Government resolution is not in conflict with the
constitutional principle of a state under the rule of law and
Paragraph 1 of Article 9 of the Law "On the Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts".
3. Article 94 of the Constitution prescribes:
"The Government of the Republic of Lithuania:
1) shall administer the affairs of the country, protect
the inviolability of the territory of the Republic of
Lithuania, guarantee State security and public order;
2) shall execute laws and resolutions of the Seimas
concerning the implementation of laws, as well as the decrees
of the President of the Republic;
3) shall co-ordinate the activities of the ministries and
other establishments of the Government;
4) shall prepare a draft State Budget and present it to
the Seimas; execute the State Budget and present an account on
the fulfilment of the budget to the Seimas;
5) shall prepare draft laws and present them to the Seimas
for consideration;
6) shall establish diplomatic relations and maintain
relations with foreign states and international organisations;
7) shall discharge other duties prescribed to the
Government by the Constitution and other laws."
The powers of the Government arise from the Constitution
and laws. Everything that the Government performs, while
implementing the powers established for it in the Constitution
and laws, is resolving of the affairs of state administration.
4. Article 95 of the Constitution provides:
"The Government of the Republic of Lithuania shall resolve
the affairs of State administration at its sittings by
resolutions adopted by majority vote of all members of the
Government. The State Controller may also participate in the
sittings of the Government.
Resolutions of the Government shall be signed by the Prime
Minister and the Minister of an appropriate branch."
Under Paragraph 1 of Article 95 of the Constitution, all
questions of state administration which are attributed to the
powers of the Government by the Constitution and laws, are
decided by adoption of resolutions. A Government resolution is
a legal act whereby the Government resolves the affairs of
state administration. The affairs of state administration may
not be decided by the Government adopting an act of a different
type (Constitutional Court ruling of 29 November 2001).
Thus, the Constitution consolidates only one type of legal
acts of the Government which it has the right to adopt while
deciding the affairs of state administration, which is a
Government resolution.
5. Paragraph 1 of Article 123 of the Constitution
provides: "In higher level administrative units, the
administration shall be organised by the Government in
accordance with the procedure established by law."
It has been mentioned that local government is execution
of the functions of state administration (i.e. executive power)
in localities.
Under Paragraph 1 of Article 1 of the Governing of the
County, the county is a higher territorial administrative unit
of the Republic of Lithuania, the governing of which shall be
organised by the Government through the county chief, the
Ministries and other Government institutions; the government of
the county is a constituent part of state administration. The
county chief shall be appointed and dismissed from office by
the Government upon presentation by the Prime Minister
(Paragraph 1 of Article 4 of the Law on the Governing of the
County, Item 14 of Article 22 of the Law on the Government).
It follows from the Constitution and the law that the
county chief is a state official through which the Government
organises state administration of a higher administrative unit
(county), and his appointment and dismissal from office is an
affair of state administration assigned to the competence of
the Government, which may be decided by the Government adopting
only one type of legal acts, i.e. Government resolutions.
6. It has been mentioned that the petitioner requests to
investigate whether the disputed Government resolution is not
in conflict with the constitutional principle of a state under
the rule of law.
The constitutional principle of a state under the rule of
law is a universal one upon which the whole Lithuanian legal
system as well as the Constitution are based. The content of
the principle of a state under the rule of law reveals itself
in various provisions of the Constitution
6.1. One of the basic elements of the principle of a state
under the rule of law, which is consolidated in the
Constitution, is legal certainty and clearness. The imperative
of legal certainty and clearness presupposes certain obligatory
requirements to legal regulation. Legal regulation must be
clear and harmonious, legal norms must be formulated precisely
and not contain any ambiguities. Legal normative acts must be
published under established procedure and all entities of legal
relations must have an opportunity to familiarise with them.
6.2. The principle of a state under the rule of law also
means that legal regulation may be amended only in pursuance
with an earlier established procedure and without violating the
principles and norms of the Constitution, it is necessary,
inter alia, to follow the principle lex retro non agit
(Constitutional Court ruling of 12 July 2001).
6.3. One of the requirements of the constitutional
principle of a state under the rule of law in the field of
state administration is that the power of legal acts which
decide the issues of state administration should be
prospective.
It is noteworthy in the context of the case under
consideration that until a legal act concerning the dismissal
from office of a particular state official comes into force,
this official enjoys and discharges the powers assigned to him
by the Constitution, laws, and other legal acts.
6.4. It has been held in the Constitutional Court ruling
of 29 November 2001 that an essential element of the principle
of a state under the rule of law is that only published legal
acts are effective. Law may not be non-public. The
constitutional requirements that only published legal acts be
effective and that they be published are an important
precondition of legal certainty. Under the Constitution, the
Government, while resolving affairs of state administration,
must always adopt resolutions, and they must be published
regardless of whether the legal acts adopted by the Government
are normative or individual, as well as regardless of the fact
as to what entities or circles of entities they are meant.
7. It has been mentioned that it was decided by Government
Resolution No. 457 "On the Dismissal of the Chief of the
Vilnius County" of 11 April 2003 to dismiss G. Paviržis from
the office of the Chief of the Vilnius County as from the date
indicated in his application.
It is clear from the case material that in the application
of G. Paviržis he requests to be dismissed from the office of
the Chief of the Vilnius County as from 8 April 2003.
Thus, the formula "to dismiss Gediminas Paviržis from the
office of the county chief as from the date indicated in his
application" of the 11 April 2003 Government Resolution No. 457
"On the Dismissal of the Chief of the Vilnius County" means
that, under this resolution, G. Paviržis was dismissed from the
office of the chief of the Vilnius county as from 8 April 2003.
8. It is noteworthy that the disputed Government
resolution was adopted on 11 April 2003 and published in the
official gazette Valstybės žinios on 16 April 2003.
Paragraph 1 of Article 9 of the Law "On the Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" provides that the resolutions by the
Government shall come into force following the day, when signed
by the Prime Minister and the appropriate minister, they shall
be published in the official gazette Valstybės žinios, provided
a later date of their coming into force has not been
established by the resolution itself.
Thus, the Government resolution establishing that G.
Paviržis is dismissed from the office of the Chief of the
Vilnius County as from the date indicated in his application
(i.e. as from 8 April 2003), came into force on 17 April 2003.
9. G. Paviržis was dismissed from the office of the Chief
of the Vilnius County by the disputed Government resolution
before the Government resolution concerning his dismissal from
office was adopted, published and came into force. It needs to
be noted in the context of the case under consideration that,
though the disputed Government resolution itself came into
force from 17 April 2003, i.e. on the next day after it was
published in the official gazette Valstybės žinios, the power
of the content of this Government resolution was retrospective.
10. It has been mentioned that the disputed Government
resolution provides that G. Paviržis is dismissed from the
office of the Chief of the Vilnius County "from the date
indicated in his application". Thus, the Government resolution
itself does not specify a concrete date of the dismissal of G.
Paviržis from the office of the Chief of the Vilnius County.
Such formulation of the disputed resolution, according to which
G. Paviržis is dismissed from the office of the Chief of the
Vilnius County "as from the date indicated in his application"
is legally deficient, because it is not clear from this
Government resolution, as from what concrete date the powers of
G. Paviržis, Chief of the Vilnius County, were terminated.
11. The representative of the Government, the party
concerned, bases her arguments concerning the conformity of the
disputed Government resolution with the constitutional
principle of a state under the rule of law and Paragraph 1 of
Article 9 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" on the fact that the Government can decide the question
of dismissal of the county chief from office by adopting a
so-called protocol decision (i.e. a decision, which is
formalised by entering it into the minutes of the Government
sitting). According to the representative of the Government, G.
Paviržis was dismissed from the office of the Chief of the
Vilnius County by the "protocol decision" of 9 April 2003.
These arguments of the representative of the Government,
the party concerned, are legally groundless.
The minutes of the 9 April 2003 Government sitting contain
the following entry: "To take account of information provided
by J. Bernatonis, the Minister if Internal Affairs, that G.
Paviržis, the Chief of the Vilnius County has submitted an
application to the Prime Minister requesting to dismiss him
from the office of the Chief of the Vilnius County, because he
had been elected to the municipal council of the Vilnius city.
A draft resolution of the Government of the Republic of
Lithuania formalising the said dismissal is to be presented in
the next sitting of the Government of the Republic of
Lithuania."
Thus, the said minutes of the Government sitting specify
only that the Government takes account of the presented
information concerning the application of G. Paviržis on the
request to dismiss him from the office of the Chief of the
Vilnius County, as well as that a draft resolution, which will
formalise dismissal of G. Paviržis, will be presented in the
next Government sitting.
It has been mentioned that the county chief is a state
official through which the Government organises state
administration of a higher administrative unit (a county), and
his appointment and dismissal from office is an affair of state
administration assigned to the competence of the Government
which, according to the Constitution, may be decided by the
Government adopting a resolution only.
Therefore, the decision of the Government concerning
dismissal of G. Paviržis from the office of the Chief of the
Vilnius County ought to have been adopted only observing the
requirements established by the Constitution, i.e. such a
decision must be adopted by a Government resolution in a
Government sitting by majority vote of all members of the
Government and signed by the Prime Minister and a Minister of
an appropriate branch.
12. Taking account of the arguments set forth, one is to
conclude that the provision "as from the date indicated in his
application" established by Government Resolution No. 457 "On
the Dismissal of the Chief of the Vilnius County" of 11 April
2003 is in conflict with the constitutional principle of the
state under the rule of law.
13. The petitioner requests to investigate whether
Government Resolution No. 457 "On the Dismissal of the Chief of
the Vilnius County" of 11 April 2003 is not in conflict with
Paragraph 1 of Article 9 of the Law "On the Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts".
13.1. Paragraph 1 of Article 9 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" provides: "The resolutions
by the Government shall come into force following the day, when
signed by the Prime Minister or the appropriate minister, they
shall be published in the official gazette Valstybės žinios,
provided a later date of their coming into force has not been
established by the resolution itself."
13.2. It has been mentioned that though the disputed
Government resolution itself came into force from 17 April
2003, i.e. on the next day after its publication in the
official gazette Valstybės žinios, the power of the content of
this Government resolution was retrospective.
13.3 Taking account of these arguments one is to conclude
that the provision "as from the date indicated in his
application" established by Government Resolution No. 457 "On
the Dismissal of the Chief of the Vilnius County" of 11 April
2003 is in conflict with Paragraph 1 of Article 9 of the Law
"On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts".
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 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 Paragraph 2 of Article 4 of the
Republic of Lithuania Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 881 is in conflict
with Article 4, Paragraphs 1 and 2 of Article 5, Paragraph 4 of
Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of
Article 83, Article 99, Paragraphs 1 and 2 of Article 107,
Paragraphs 1 and 4 of Article 119, Paragraph 2 of Article 120,
Paragraphs 1 and 2 of Article 123, and Paragraph 1 of Article
134 of the Constitution of the Republic of Lithuania.
2. To recognise that the provision "as from the date
indicated in his application" established by Government of the
Republic of Lithuania Resolution No. 457 "On the Dismissal of
the Chief of the Vilnius County" of 11 April 2003 is in
conflict with the constitutional principle of a state under the
rule of law and Paragraph 1 of Article 9 of the Republic of
Lithuania Law "On the Procedure of Publication and Coming Into
Force of Republic of Lithuania Laws and Other Legal Acts".
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