Lietuviškai
Case No. 21/2003
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT
RULING OF 30 MAY 2003
13 February 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, 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 representatives of the Seimas of the Republic of
Lithuania, the party concerned, in Case 21/2003, who were
Petras Papovas, a member of the Seimas, and Pranas Žukauskas,
the chief specialist of the Legal Department of the Office of
the Seimas,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 11 February 2004 in its
public hearing considered the petition of Petras Papovas, a
member of the Seimas, to construe the following provisions of
the 30 May 2003 Constitutional Court 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'":
1) "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" (Item 8.1 of Chapter I of the
part of reasoning of the ruling);
2) "<...> officials of the institutions accountable to the
municipal council <...> may not be members of the municipal
councils at the same time" (Item 8.3.2 of Chapter I of the part
of reasoning of the ruling).
The Constitutional Court
has established:
I
1. On 24 December 2002, in Case 49/2000 the Constitutional
Court passed the 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" (Official Gazette Valstybės žinios, 2003, No.
19-828).
2. On 30 May 2003, in Case 21/2003 the Constitutional
Court passed the 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'" (Official Gazette Valstybės žinios, 2003, No. 53-2361;
hereinafter also referred to as the Ruling).
3. P. Papovas, a member of the Seimas, who, in Case
49/2000, used to be a representative of the petitioner, a group
of Seimas members, and who, in Case No. 21/2003, used to be a
representative of the party concerned, the Seimas, in his
petition of 6 January 2004 requests that the Constitutional
Court construe certain provisions of Constitutional Court
rulings of 24 December 2002 and 30 May 2003.
4. On 26 January 2004, the Constitutional Court adopted a
decision concerning division of the petition of P. Papovas of 6
January 2004 into two independent petitions: a petition to
construe certain provisions of the Constitutional Court ruling
of 24 December 2002, and a petition to construe certain
provisions of the Constitutional Court ruling of 30 May 2003.
5. On 11 February 2004, the Constitutional Court adopted
the Decision "On the construction of the Constitutional Court
ruling of 24 December 2002" in which it construed certain
provisions of the Constitutional Court ruling of 24 December
2002.
6. The member of the Seimas P. Papovas requests to
construe the following provisions of the Constitutional Court
ruling of 30 May 2003:
1) "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" (Item 8.1 of Chapter I of the
part of reasoning of the Ruling);
2) "<...> officials of the institutions accountable to the
municipal council <...> may not be members of the municipal
councils at the same time" (Item 8.3.2 of Chapter I of the part
of reasoning of the Ruling).
II
At the Constitutional Court hearing P. Papovas virtually
reiterated his request to construe certain provisions of the
Ruling and explained the reasons set forth in his petition.
The Constitutional Court
holds that:
I
1. A Constitutional Court ruling is integral. Its
resolution part is based upon the arguments of the part of
reasoning (statement). Therefore, while construing its ruling,
the Constitutional Court is bound both by the content of the
part of resolution and that of reasoning of its ruling.
The decision adopted concerning construction of a
Constitutional Court ruling is inseparable from the
Constitutional Court ruling (Constitutional Court decision of
12 January 2000).
2. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe
its ruling without changing its content.
3. The principle of a state under the rule of law
established in the Constitution inter alia implies continuity
of jurisprudence (Constitutional Court ruling 12 July 2001).
In this context, one is to note that on 11 February 2004
the Constitutional Court adopted the Decision "On the
construction of the Constitutional Court ruling of 24 December
2002" in which it construed certain provisions of the
Constitutional Court ruling of 24 December 2002.
II
1. The member of the Seimas P. Papovas requests to
construe the provision "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" of the
Ruling (Item 8.1 of Chapter I of the part of reasoning of the
Ruling).
1.1. It is clear from the petition that it is requested to
construe as to which state officials, according to the
provision "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" of Item 8.1 of Chapter I of
the part of reasoning of the Ruling, are to be attributed to
officials enjoying powers to control or supervise activities of
municipalities and who, due to this, cannot be municipal
council members.
1.2. The formula "powers to control or supervise
activities of municipalities" was used in the Constitutional
Court ruling of 24 December 2002, while it was construed in the
Constitutional Court decision of 11 February 2004 that the
formula "powers to control and supervise municipal activities"
means that respective state officials (servants and other
persons irrespective of how they are referred to in laws;
hereinafter-state officials) have the right to adopt decisions
upon which depend the adoption and implementation of decisions
of municipal councils within their competence defined by the
Constitution and laws. Under the Constitution, members of
municipal councils may not be unequal according to their legal
status. This constitutional requirement would be violated if a
person who, under the Constitution and laws, enjoyed powers to
adopt the decisions that might determine the adoption and
implementation of decisions of municipal councils within the
competence defined in the Constitution and laws. It is due to
this that state officials who, under the Constitution and laws,
enjoy powers to control and supervise municipal activities
cannot, at the same time, be members of municipal councils as
well.
It was also held in the Constitutional Court decision of
11 February 2004 that state officials who enjoy powers to
conduct only organisational, technical etc. control or
supervision of the executive bodies accountable to municipal
councils, of municipal establishments or enterprises (e.g., in
the areas of the environment, sanitation and hygiene,
education, labour security, economy and trade, construction,
tax administration, clerical work and many others) cannot be
attributed to the state officials who have the right to adopt
decisions upon which the adoption and implementation of
decisions of municipal councils within their competence defined
in the Constitution and laws would be dependent. Such state
officials may hold their office and be municipal council
members at the same time. While deciding whether a certain
state official is to be attributed to the state officials who
have the right to adopt decisions upon which the adoption and
implementation of decisions of municipal councils within their
competence defined in the Constitution and laws would be
dependent, and who, due to this, cannot be municipal council
members at the same time, one must assess in every particular
case the content of powers established to them in the
Constitution and laws.
1.3. Taking account of the arguments set forth, one is to
hold that the provision "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" of Item
8.1 of Chapter I of the part of reasoning of the Constitutional
Court ruling of 30 May 2003 inter alia means that the state
officials (servants and other persons irrespective of how they
are referred to in laws) who, under the Constitution and laws,
enjoy the powers to adopt the decisions upon which belong the
adoption and implementation of the decision of municipal
councils within the competence defined in the Constitution and
laws, may not be members of municipal councils at the same
time; this statement does not mean that state officials who
enjoy powers to conduct only organisational, technical etc.
control or supervision of the executive bodies accountable to
municipal councils, of municipal establishments or enterprises
cannot be members of municipal councils at the same time.
2. The member of the Seimas P. Papovas requests to
construe the provision "<...> officials of the institutions
accountable to the municipal council <...> may not be members
of the municipal councils at the same time" of the Ruling (Item
8.3.2 of Chapter I of the part of reasoning of the Ruling).
2.1. It is clear from the petition that it is requested to
construe whether, according to the provision "<...> officials of
the institutions accountable to the municipal council <...> may
not be members of the municipal councils at the same time" of
the Ruling, heads of municipal establishments maintained from
the budget and those of public establishments, enterprises and
organisations established by municipalities may not be members
of municipal councils at the same time.
2.2. 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).
When implementing the right of self-government guaranteed
by the Constitution, municipal councils, under the laws, may
establish municipal institutions, establishments and
enterprises.
In its decision of 11 February 2004, the Constitutional
Court held that the legislator enjoys discretion to establish,
by means of the law, as to who (whether municipal councils or
executive bodies accountable to them) has the right to adopt
decisions concerning appointment of heads of municipal
establishments and enterprises, and supervision of these
establishments and enterprises: he has the right to establish
that these decisions are either adopted by municipal councils,
or that they are adopted by executive bodies accountable to the
municipal councils, or that these decisions are adopted by
municipal councils, but that the latter may transfer the right
to adopt such decisions to the executive bodies accountable to
the municipal councils; in this case the powers of municipal
councils to transfer the said rights to the executive bodies
accountable to the municipal councils must be directly
indicated in the law. After the law establishes the powers of
municipal councils to adopt decisions concerning transfer of
the supervision over municipal establishments and enterprises
to the executive bodies accountable to the municipal councils,
one cannot deny the right of municipal councils to supervise
these establishments and enterprises by themselves.
If the laws provide that heads of municipal establishments
and enterprises or their officials are accountable to municipal
councils for the activities of their or other respective
establishments and enterprises, then they may not be members of
the municipal councils at the same time. Otherwise, the right
of municipal councils (as the representation of territorial
communities) to supervise the activity of the establishments
and enterprises (their heads and officials) that are
accountable to them would be distorted, since there would
appear a legal situation when the heads or officials of the
establishments and enterprises accountable to the municipal
councils supervised them (their own activity) by themselves,
and were accountable to themselves.
2.3. Taking account of the arguments set forth, one is to
conclude that the provision "<...> officials of the institutions
accountable to the municipal council <...> may not be members
of the municipal councils at the same time" of Item 8.3.2 of
Chapter I of the part of reasoning of the Constitutional Court
ruling of 30 May 2003 means that if the laws provide that heads
of municipal establishments and enterprises or their officials
are accountable to municipal councils for the activities of
their or other respective establishments and enterprises, then
they may not be members of the municipal councils at the same
time.
Conforming to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, the Constitutional Court of
the Republic of Lithuania has adopted the following
decision:
To construe that the following provisions of the 30 May
2003 Constitutional Court 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'":
1) the provision "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" of Item
8.1 of Chapter I of the part of reasoning inter alia means that
the state officials (servants and other persons irrespective of
how they are referred to in laws) who, under the Constitution
and laws, enjoy the powers to adopt the decisions upon which
belong the adoption and implementation of the decision of
municipal councils within the competence defined in the
Constitution and laws, may not be members of municipal councils
at the same time; this statement does not mean that state
officials who enjoy powers to conduct only organisational,
technical etc. control or supervision of the executive bodies
accountable to municipal councils, of municipal establishments
or enterprises cannot be members of municipal councils at the
same time.
2) the provision "<...> officials of the institutions
accountable to the municipal council <...> may not be members
of the municipal councils at the same time" of Item 8.3.2 of
Chapter I of the part of reasoning means that if the laws
provide that heads of municipal establishments and enterprises
or their officials are accountable to municipal councils for
the activities of their or respective establishments and
enterprises, then they may not be members of the municipal
councils at the same time.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas