Lietuviškai
Case No. 24/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 11 (WORDING OF 4 MAY
2004) AND PARAGRAPH 2 (WORDING OF 4 MAY 2004) OF
ARTICLE 2 OF THE REPUBLIC OF LITHUANIA LAW ON
PRESIDENTIAL ELECTIONS WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
25 May 2004
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 representatives of a group of members of the Seimas of
the Republic of Lithuania, the petitioner, who were Vytautas
Zabiela and Henrikas Žukauskas, members of the Seimas,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Julius Sabatauskas, a
member of the Seimas, Mindaugas Girdauskas, a senior consultant
to the Legal Department of the Office of the Seimas, and Girius
Ivoška, the chief specialist to the Legal Department of the
Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 18 May
2004, in its public hearing heard case No. 24/04 subsequent to
the petition of the petitioner, a group of members of the
Seimas, requesting to investigate as to whether Article 1 of
the Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof is not in conflict with the principle of a
state under the rule of law enshrined in the Preamble to the
Constitution of the Republic of Lithuania, and whether Article
2 of this law is not in conflict with the principle of a state
under the rule of law enshrined in the Preamble to the
Constitution of the Republic of Lithuania, as well as with
Articles 1 and 2, Paragraph 1 of Article 3, Article 4,
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 29, Paragraph 1 of Article 33, Paragraph
2 of Article 34, Article 67, Paragraph 1 of Article 78, Article
79, and Paragraph 1 of Article 109 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
1. On 4 May 2004, the Seimas adopted the Republic of
Lithuania Law on Supplement of the Law on Presidential
Elections with Article 11 and Supplement to Article 2 Thereof
(Official Gazette Valstybės žinios, 2004, No. 75-2568). By
Paragraph 1 of Article 2 of this law Article 2 (wording of 19
September 1996) of the Republic of Lithuania Law on
Presidential Elections was supplemented with new Paragraph 2
and it was established that a person, who has been removed from
office or his mandate of the Seimas member has been revoked by
the Seimas in accordance with the procedure for impeachment
proceedings, may not be elected President of the Republic if
less than 5 years have elapsed since his removal from office or
the revocation of his mandate of the Seimas member. By Article
1 of the Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof, the Republic of Lithuania Law on
Presidential Elections was supplemented with Article 11, which
is set forth as follows:
"Article 11. Purposes for Supplementing of Article 2 of
this Law
Pursuant to the principles of an open, just, and
harmonious civil society and state under the rule of law
enshrined in the Preamble to the Constitution of the Republic
of Lithuania, as well as Articles 6, 34 and 74 of the
Constitution, the Seimas of the Republic of Lithuania adopts
this Law."
2. A group of members of the Seimas, the petitioner,
applied to the Constitutional Court with a petition requesting
to investigate whether Article 1 of the Republic of Lithuania
Law on Supplement of the Law on Presidential Elections with
Article 11 and Supplement to Article 2 Thereof is not in
conflict with the principle of a state under the rule of law
enshrined in the Preamble to the Constitution of the Republic
of Lithuania, and whether Article 2 of this law is not in
conflict with the principle of a state under the rule of law
enshrined in the Preamble to the Constitution, as well as with
Articles 1 and 2, Paragraph 1 of Article 3, Article 4,
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 29, Paragraph 1 of Article 33, Paragraph
2 of Article 34, Article 67, Paragraph 1 of Article 78, Article
79, and Paragraph 1 of Article 109 of the Constitution.
II
The petition of the petitioner is based on the following
arguments.
1. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution);
the norms set forth in various articles of the Constitution are
harmonised with each other and constitute a whole.
According to the petitioner, it follows from Articles 1,
2, 3, and 4, Paragraph 1 of Article 33 as well as other
provisions of the Constitution that only citizens of the
Republic of Lithuania, i.e. the state community-the civil
Nation-have the right to create the State of Lithuania, only
citizens have the right to decide what should the State of
Lithuania be like, and to establish the constitutional system
of the State of Lithuania, the organisation of the institutions
which implement state power, the bases of the legal relations
between a person and the state, the economic system of this
country, etc. While executing their rights and freedoms,
including the electoral right, citizens participate in the
implementation of sovereignty of the Nation. Creation of the
democratic national institutes and function thereof is possible
only after the electoral right of the citizens is ensured.
In the opinion of the petitioner, the purpose of the norm
"the right to be elected shall be established by the
Constitution of the Republic of Lithuania and by the election
laws" provided for in Paragraph 2 of Article 34 of the
Constitution, is to establish a basis of legal relations
between citizens of the Republic of Lithuania and the State of
Lithuania, and the limits of the legal regulation which are to
be taken into consideration while regulating the passive
electoral right of the citizens.
According to the petitioner, Article 56, Paragraph 1 of
Article 78, and Paragraph 1 of Article 79 of the Constitution
consolidates a final list of requirements for a person who
wishes to become President of the Republic; it is not permitted
to "narrow" this list by means of the law, while "ignoring" the
Constitution.
The petitioner states that Article 5 of the Constitution
consolidates the principle of separation of powers, and Article
7 consolidates the fundamental constitutional principle "any
law or other act, which is inconsistent with the Constitution,
shall be invalid" which defines the supremacy of the
Constitution within the system of other legal acts. The
Constitution also consolidates the basic provisions of legal
regulation and constitutes the legislative basis. Laws may not
be in conflict with the Constitution; while exercising its
powers to pass laws the legislator must have regard for the
constitutional imperative "the scope of power shall be limited
by the Constitution" (Paragraph 2 of Article 5 of the
Constitution). Thus the Seimas, the legislator, while
representing the Nation (Article 55 of the Constitution), is
independent insofar as its powers are not limited by the
Constitution. According to the petitioner, the prerogative of
the Seimas to pass and amend a law, and to recognise a law as
no longer effective, is unquestionable, however, when doing so,
the Seimas must follow the Constitution. The legislator has the
discretion to make the provisions of the Constitution more
specific or detailed, and to legally regulate the relations
which are not expressis verbis regulated by the Constitution,
however, while doing so, it must not exceed the principles and
norms of the Constitution. Chapter 2, the Preamble, Chapters 3,
4 and 13 of the Constitution define the rights and freedoms
which are to be ensured to the citizens of the Republic of
Lithuania and other persons within the jurisdiction of the
Republic of Lithuania. Such rights are constitutional values
and they may not be denied or violated by bringing other
constitutional values above them or by making them opposed to
each other; a balance should exist between these values. The
basis of all these values is the Constitution, which, being a
value itself, constitutes a "standard" of laws and other legal
acts adopted in the state. This follows from the striving for
an open, just, and harmonious civil society and a state under
the rule of law, which is entrenched in the Preamble to the
Constitution, inseparable from which is the constitutional
principle of a state under the rule of law, a universal
principle, which constitutes the basis of the entire legal
system of Lithuania and the Constitution of the Republic of
Lithuania itself, and the content of which is reflected in
various provisions of the Constitution. In addition to other
requirements, the said constitutional principle implies that
human rights and freedoms must be ensured, that all
institutions executing state power and other state institutions
must act in accordance with law and must obey law, and that the
Constitution bears the supreme legal power and that laws and
other legal acts must be in compliance with the Constitution.
2. In the opinion of the petitioner, having established in
the Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof that a person, who has been removed from
office or his mandate of the Seimas member has been revoked by
the Seimas in accordance with the procedure for impeachment
proceedings, may not be elected President of the Republic if
less than 5 years have elapsed since his removal from office or
the revocation of his mandate of the Seimas member, while no
such restriction exists in the Constitution, and having
justified this restriction by the striving for an open, just,
and harmonious civil society and a state under the rule of law,
one established restrictions of the passive electoral right of
the citizens and thus the principles and norms enshrined in the
Constitution were violated, and the Constitution as a value was
denied.
3. The petitioner maintains that, according to the
constitutional doctrine of impeachment, only the sanction of
removal from office is applied to a person. The sanctions for
violations of law, as established by the state, must be
proportionate for the violation of law, they must be in line
with the generally important objectives sought, and they should
not restrict the person more than it is necessary to achieve
these objectives. A just balance (proportion) should exist
between the objective sought and measures of achieving this
objective, between violations of law and established punishment
for the said violations. When providing for a liability and its
implementation a just balance between the interests of the
person and the society should be maintained in order to avoid
an unfounded restriction of the rights of the person. The
rights of the person may be restricted as far as it is needed
to protect the public interests. The petitioner also noted
that, by establishing an additional sanction for impeachment,
the Seimas undertook the function of administration of justice,
while in the Republic of Lithuania justice may be administered
only by court.
In the opinion of the petitioner, Article 2 of the
Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof has established an additional sanction to a
person, who has been subject to an impeachment procedure,
because the passive electoral right of such person is
restricted by the legal regulation established in this article.
Therefore, in the opinion of the petitioner, these restrictions
are in conflict with the constitutional principles of a state
under the rule of law, those of justice and proportionality.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned, who
were J. Sabatauskas, M. Girdauskas, and G. Ivoška.
1. According to the representatives of the party
concerned, the petitioner did not present any arguments related
to the conflict of Article 1 of the Republic of Lithuania Law
on Supplement of the Law on Presidential Elections with Article
11 and Supplement to Article 2 Thereof with the Constitution;
under Paragraph 6 of Article 106 of the Constitution and Item 5
of Paragraph 1 and Paragraph 3 of Article 69 of the Law on the
Constitutional Court, this constitutes a basis for refusal to
investigate the petition, and at the later stage of the
process-for dismissal of the case to the extent that it is
requested to investigate the compliance of Article 1 of the
said law with the Constitution. On the other hand, Article 1 of
the said law only consolidates the purpose of adoption of
Article 2 of this law, therefore, in the opinion of J.
Sabatauskas, M. Girdauskas, and G. Ivoška, Article 1 itself is
not in conflict with the Constitution.
2. In the opinion of the representatives of the party
concerned, the list of restrictions applied to a person, who
may be elected President of the Republic, which are defined in
Article 78 of the Constitution, is not final. Article 34 of the
Constitution provides that the right to be elected shall be
established by the Constitution of the Republic of Lithuania
and by the election laws; under Article 78 of the Constitution,
a citizen of the Republic of Lithuania by birth, who has
resided in Lithuania for not less than the past three years, if
he has reached the age of not less than 40 prior to the
election day, and if he may be elected a member of the Seimas,
may be elected President of the Republic; the same person may
not be elected President of the Republic for more than two
consecutive terms; under Article 56 of the Constitution, any
citizen of the Republic of Lithuania who is not bound by an
oath or pledge to a foreign state, and who, on the election
day, is not younger than 25 years of age and permanently
resides in Lithuania, may be elected a member of the Seimas and
consequently the President of the Republic; a person who has
not fulfilled punishment imposed on him by a court judgement,
as well as a person recognised as incapable by a court, may not
be elected President of the Republic. Moreover, the
representatives of the party concerned noted that Article 141
of the Constitution provides that "persons performing actual
military service or alternative service, as well as officers of
the national defence system, of the police and the Interior,
non-commissioned officers, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve may not be members of the Seimas and of
municipal councils" and that "they may not hold elected or
appointed office in State civil service, and may not take part
in the activities of political parties and political
organisations", and Article 113 of the Constitution provides
that a judge may not hold any other elected or appointed
office, and may not participate in the activities of political
parties and other political organisations. In the opinion of J.
Sabatauskas, M. Girdauskas, and G. Ivoška, the prohibition
against participation in the activities of political parties
and political organisations is a part of the constitutional
principle of a state under the rule of law pursuant to which
state officials must follow public, instead of private
interests, and avoid a conflict of public and private
interests, and it reflects the prohibition, which is entrenched
in the Constitution, against participation in the campaign of
the election of the President of the Republic or the election
to the Seimas-the political activity (under Paragraph 2 of
Article 83 of the Constitution, a person elected President of
the Republic must suspend his activities in political parties
and political organisations until the beginning of a new
campaign of the election of the President of the Republic). In
case of participation of a judge or the state official
specified in Article 141 of the Constitution in the campaign of
election of the President of the Republic, a conflict could
arise between a person's duty to exercise his powers
impartially and his private interest to be elected, therefore,
according to the principle of a state under the rule of law,
these persons may not participate in the campaign of election
of the President of the Republic and consequently be elected
President of the Republic. According to J. Sabatauskas, M.
Girdauskas, and G. Ivoška, the final list of restrictions
applied to a person, who may be elected President of the
Republic, is determined by the content of the principle of a
state under the rule of law.
3. The constitutions of democratic states treat
impeachment as a special procedure, where the issue of the
constitutional liability of the official is being solved. The
possibility entrenched in the Constitution to remove the
President of the Republic from office in accordance with the
procedure for impeachment proceedings is a form of public
democratic control over the activities of the President of the
Republic, a method of his constitutional liability to the
Nation, one of the means of self-protection of a democratic
civil society against the abuse by the President of the
Republic of the powers established for him. According to J.
Sabatauskas, M. Girdauskas, and G. Ivoška, under Article 74 of
the Constitution, for gross violation of the Constitution,
breach of the oath or commission of a crime a person may be
removed from office not by an ordinary majority of the
participants of the meeting, but by the qualified, the 3/5
majority vote of all the members of the Seimas-the
representatives of the Nation. Having taken account of the fact
that the Preamble to the Constitution consolidates the striving
for an open, just, and harmonious civil society and state under
the rule of law, the representatives of the party concerned
believe that the participation of the person who has been
removed from office in accordance with the procedure for
impeachment proceedings in the elections and becoming the
President of the Republic before a reasonable period of time
elapses, would deny the meaning of the provisions of the
Constitution linked with application of the constitutional
liability under the procedure for impeachment proceedings.
4. The representatives of the party concerned noted that
the constitutional principle of a state under the rule of law,
among other requirements, implies that all the institutions
executing state power should act according to law and in
compliance with law; a state under the rule of law is a state
based on the respect for law. The President of the Republic
shall be the Head of State (Paragraph 1 of Article 77 of the
Constitution). Therefore, in the opinion of J. Sabatauskas, M.
Girdauskas, and G. Ivoška, the President of the Republic may be
only a person who is in general eligible for being the Head of
State; a person, who has taken the oath to follow the
Constitution and law, however who has breached the oath,
grossly violated the Constitution and who, for this reason, has
been removed from office by the 3/5 majority vote of all the
members of the Seimas-the representatives of the Nation-may not
be the Head of the State under the rule of law for at least a
reasonable period. Otherwise, a gross disrespect for law would
be tolerated and thus the essence itself of a state under the
rule of law would be denied: in a state under the rule of law a
situation where a person, who officially takes an oath to be
faithful to the Republic of Lithuania (Articles 59, 74, 82,
112, and 104 of the Constitution), to respect the Constitution
of the Republic of Lithuania and law, and not to violate it,
but grossly violates law (grossly violates the Constitution,
breaches the oath, commits a crime) and for the said reason is
removed from office, has a right, before the reasonable period
of time elapses, to take the oath to follow the law again and
to become the Head of State, is impossible. According to the
representatives of the party concerned, the exceptional legal
status of the President of the Republic also implies the
exceptional, special requirements to the candidates for the
President of the Republic.
5. Paragraph 1 of Article 86 of the Constitution provides
that the person of the President of the Republic is inviolable:
while in office, he may neither be arrested nor be held
criminally or administratively liable. According to J.
Sabatauskas, M. Girdauskas, and G. Ivoška, such a person may be
held administratively or criminally liable only in case he has
been removed from office in accordance with the procedure for
impeachment proceedings. The purpose of the removal of a person
from office according to the procedure for impeachment is the
creation of a possibility to make the person, who was the
President of the Republic and who has committed a crime or an
administrative violation of law, liable in other legal manner
under the procedure established by laws, and this needs a
reasonable period of time. In the opinion of the
representatives of the party concerned, the period of time
provided for in Article 89 of the Constitution and other
articles of the Constitution (from the removal of a person from
office of the President of the Republic till the oath of the
newly elected President of the Republic) is not enough to bring
the said person to criminal or administrative responsibility.
Therefore, the provisions of the Constitution may not be
interpreted as the ones that give the right to a person, who
has been removed from office of the President of the Republic
in accordance with the procedure for impeachment proceedings,
to participate in the elections provided for in Article 89 of
the Constitution, as thus constitutional principle of equality
of persons would be denied, and the conditions would be created
for a person to be elected President of the Republic at any
means and thus to acquire the immunity of the person of the
President of the Republic.
6. J. Sabatauskas, M. Girdauskas, and G. Ivoška noted
that, under Article 89 of the Constitution, the inability of a
person, who was the President of the Republic, to continue
holding the office of the President of the Republic for the
reason that he has been removed from office according to the
procedure for impeachment proceedings, is one of the compulsory
bases for appointment of elections of the President of the
Republic. The purpose of the appointment of election on the
said basis is not to revise the decision of the Seimas, but to
elect the person President of the Republic, who has not
breached the oath of the President of the Republic or grossly
violated the Constitution. The decision of the Seimas to remove
a person from office according to the procedure for impeachment
proceedings is a form of application of constitutional
liability, and the content of the constitutional liability
comprises restriction of the right of a person, who has been
removed from office according to the procedure for impeachment
proceedings, to hold office for a certain period of time; the
purpose of the application of the constitutional liability is
not the adoption of the decision by the Seimas to remove the
person from office according to the procedure for impeachment
proceedings, but the application of the said restrictions for a
certain period of time. Therefore the elections established in
Article 89 of the Constitution may not be considered a
procedure deciding an issue of dismissal of a person, who was
the President of the Republic and who has been removed from
office according to the procedure for impeachment proceedings,
from the constitutional liability, as this would deny the
priority of the content of the constitutional liability in
respect of the form of application of the constitutional
liability.
7. The principle of proportionality should be followed
when one defines liability for violations of law. In the
opinion of J. Sabatauskas, M. Girdauskas, and G. Ivoška, the
legal regulation established in Article 2 of the Republic of
Lithuania Law on Supplement of the Law on Presidential
Elections with Article 11 and Supplement to Article 2 Thereof
is in line with the principle of proportionality, as it
provides that the prohibition for a person, who has been
removed from the office of the President of the Republic
according to the procedure for impeachment proceedings, to be
elected President of the Republic is effective not for an
unlimited period of time, but for five years. In case a person,
who has been removed from office according to the procedure for
impeachment proceedings, is elected President of the Republic
before the reasonable period of time elapses, the content of
the provisions of the Constitution related to the application
of the constitutional liability would be denied and the balance
of values entrenched in the Constitution would be disturbed.
8. The petitioner's argument that the Seimas, when
adopting Article 2 of the Republic of Lithuania Law on
Supplement of the Law on Presidential Elections with Article 11
and Supplement to Article 2 Thereof, undertook the function of
administration of justice and applied an additional sanction to
a person, was evaluated by J. Sabatauskas, M. Girdauskas, and
G. Ivoška as ungrounded, because, they said, the Seimas did not
administer justice, but exercised the legislative
function-provided more details to the provisions of the
Constitution.
9. The representatives of the party concerned maintain
that Article 2 of the Republic of Lithuania Law on Supplement
of the Law on Presidential Elections with Article 11 and
Supplement to Article 2 Thereof is not in conflict with the
Constitution.
IV
1. At the Constitutional Court hearing the representatives
of the petitioner V. Zabiela and H. Žukauskas virtually
reiterated the arguments set forth in the petition by the
petitioner.
2. At the Constitutional Court hearing the representatives
of the party concerned J. Sabatauskas, M. Girdauskas, and G.
Ivoška virtually reiterated the arguments set forth in their
written explanations.
The Constitutional Court
holds that:
I
1. On 4 May 2004, the Seimas adopted the Republic of
Lithuania Law on Supplement of the Law on Presidential
Elections with Article 11 and Supplement to Article 2 Thereof.
It provides:
"Article 1. Supplement to the Law with Article 11
To supplement the Law with Article 11:
"Article 11. Purposes for Supplementing of Article 2 of
this Law
Pursuant to the principles of an open, just, and
harmonious civil society and state under the rule of law
enshrined in the Preamble to the Constitution of the Republic
of Lithuania, as well as Articles 6, 34 and 74 of the
Constitution, the Seimas of the Republic of Lithuania adopts
this Law."
Article 2. Supplement of Article 2 with Paragraph 2
1. To supplement Article 2 with new Paragraph 2:
"A person, who has been removed from office or his mandate
of the Seimas member has been revoked by the Seimas in
accordance with the procedure for impeachment proceedings, may
not be elected President of the Republic if less than 5 years
have elapsed since his removal from office or the revocation of
his mandate of the Seimas member."
2. To consider former Paragraph 2 of Article 2 as
Paragraph 3."
2. The petitioner requests to investigate as to whether
Article 1 of the Republic of Lithuania Law on Supplement of the
Law on Presidential Elections with Article 11 and Supplement to
Article 2 Thereof is not in conflict with the principle of a
state under the rule of law entrenched in the Preamble to the
Constitution, and whether Article 2 of this law is not in
conflict with the principle of a state under the rule of law
entrenched in the Preamble to the Constitution, as well as with
Articles 1 and 2, Paragraph 1 of Article 3, Article 4,
Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6,
Paragraph 1 of Article 29, Paragraph 1 of Article 33, Paragraph
2 of Article 34, Article 67, Paragraph 1 of Article 78, Article
79, and Paragraph 1 of Article 109 of the Constitution.
3. Although the petition of the petitioner is named "On
the compliance of the Republic of Lithuania Law on Supplement
of the Law on Presidential Elections with Article 11 and
Supplement to Article 2 Thereof with the striving for an open,
just, and harmonious civil society and a state under the rule
of law entrenched in the Preamble to the Constitution of the
Republic of Lithuania, as well as with Articles 1, 2, 3, 4, 5,
6, 7, 29, 33, 34, 56, 67, 78,79, and 100 of the Constitution of
the Republic of Lithuania", however, its resolving part
indicates that, as already mentioned, the Constitutional Court
is requested to investigate as to whether Article 1 of the said
law is not in conflict with the principle of a state under the
rule of law entrenched in the Preamble to the Constitution, and
whether Article 2 of this law is not in conflict with the
principle of a state under the rule of law entrenched in the
Preamble to the Constitution, and Articles 1 and 2, Paragraph 1
of Article 3, Article 4, Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 6, Paragraph 1 of Article 29, Paragraph
1 of Article 33, Paragraph 2 of Article 34, Article 67,
Paragraph 1 of Article 78, Article 79, and Paragraph 1 of
Article 109 of the Constitution.
Thus the petitioner does not dispute the compliance of the
Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof (it separate articles) with Paragraph 2 of
Article 3, Paragraph 3 of Article 5, Paragraph 2 of Article 6,
Article 7, Paragraph 2 of Article 29, Paragraphs 2 and 3 of
Article 33, Paragraphs 1 and 3 of Article 34, Article 56,
Paragraphs 2 and 3 of Article 78, Paragraphs 2, 3, and 4 of
Article 109 of the Constitution: these articles (paragraphs
thereof) are not listed in the resolving part of the petition
of the petitioner.
4. The petitioner requests to investigate the compliance
of entire Article 2 the Republic of Lithuania Law on Supplement
of the Law on Presidential Elections with Article 11 and
Supplement to Article 2 Thereof with the Constitution, however,
the request of the petitioner reveals that he has no doubts as
to whether the provision "to consider former Paragraph 2 of
Article 2 as Paragraph 3" of Paragraph 2 of this article is not
in conflict with the Constitution.
5. Taking account of the fact that under Article 1 of the
Republic of Lithuania Law on Supplement of the Law on
Presidential Elections with Article 11 and Supplement to
Article 2 Thereof the Republic of Lithuania Law on Presidential
Elections was supplemented with Article 11, and that under
Paragraph 1 of Article 2 of the Republic of Lithuania Law on
Supplement of the Law on Presidential Elections with Article 11
and Supplement to Article 2 Thereof Article 2 (wording of 19
September 1996) of the Republic of Lithuania Law on
Presidential Elections was supplemented with new Paragraph 2,
the fact that the petitioner has no doubts as to whether
Paragraph 2, which changed the sequence of the paragraphs of
Article 2 of the Republic of Lithuania Law on Presidential
Elections, of Article 2 of the Republic of Lithuania Law on
Supplement of the Law on Presidential Elections with Article 11
and Supplement to Article 2 Thereof is not in conflict with the
Constitution, it is to be held that the petitioner doubts
whether Article 11 (wording of 4 May 2004) and Paragraph 2
(wording of 4 May 2004) of Article 2 of the Republic of
Lithuania Law on Presidential Elections are not in conflict
with the Constitution.
II
1. The Constitution of the Republic of Lithuania was
adopted by referendum-the voting of the entire Nation-on 25
October 1992. The referendum in which the Constitution was
adopted was organised according to the democratic legal
traditions of the State of Lithuania (Constitutional Court
ruling of 22 July 1994). The source of the Constitution is the
national community, the civil Nation, itself.
The Constitution is an act of the supreme legal power. The
Constitution reflects a social agreement-a democratically
accepted obligation by all the citizens of the Republic of
Lithuania to the current and future generations to live
according to the fundamental rules entrenched in the
Constitution and to obey them in order to ensure the legitimacy
of the governing power, the legitimacy of its decisions, as
well as to ensure human rights and freedoms, so that the
concord would exist in the society. As an act of the supreme
legal power and social agreement, the Constitution is based on
universal, unquestionable values, which are belonging of the
sovereignty to the Nation, democracy, recognition of human
rights and freedoms and respect for them, respect for law and
the rule of law, limitation of the scope of powers, duty of
state institutions to serve the people and their responsibility
to the society, public spirit, justice, striving for an open,
just, and harmonious civil society and state under the rule of
law. The Constitution provides the bases of relationships
between a person and the state, formation and functioning of
public government, the national economy, local self-government,
other major relationships of life of the society and the state.
Having adopted the Constitution, the civil Nation formed the
standardised basis for the common life of its own, as the state
community, and consolidated the state as the common good of the
entire society. The Nation usually amends the Constitution
directly or through its democratically elected representatives
and only according to the rules established in the Constitution
itself. The Constitution is supreme law. It provides the
guidelines for the entire legal system-the entire legal system
is created on the basis of the Constitution.
2. Justice, an open and harmonious civil society, a state
under the rule of law would never be possible if whole state
power becomes concentrated in a certain single institution of
state power. The Constitution consolidates the organisation of
the institutions executing state power and procedure of their
formation, which ensures a balance between the institutions of
state power, the counterbalance of the authority of certain
institutions of state power to the authority of other
institutions of state power, the harmonious activity of all the
institutions executing state power and execution of their
constitutional duty to serve the people, the solution by the
Constitutional Court of disputes related to the authority
vested by the Constitution in the institutions of state power,
the formation of all the institutions executing state power,
the Seimas, the President of the Republic, the Government, the
Judiciary, as well as other state institutions only from the
citizens, who without reservations obey the Constitution
adopted by the Nation and who, while in office, unconditionally
follow the Constitution, law, the interests of the Nation and
the State of Lithuania.
3. In case state officials perform their duties according
to the Constitution, law, act in the interests of the Nation
and the State of Lithuania, they must be protected from
pressure and unreasonable interference in their activity, when
fairly exercising their duties, they must not suffer threat
against their person, their rights and freedoms. The state
official must enjoy the confidence of the citizens-the state
community. However, in order that the citizens-the state
community-could reasonably trust the state officials, that it
would be possible to ascertain that all the state institutions
and all the state officials follow the Constitution as well as
law and obey them, while those who do not obey the Constitution
and law would not hold the office for which the confidence of
the citizens-the state community-is needed, a public democratic
control over the activity of the state officials comprising
inter alia a possibility to remove from office the state
officials who violate the Constitution and law, who bring their
personal interests or the interests of the group above the
public interests, or who disgrace state authority by their
actions, is needed. One of the forms of such public democratic
control is the constitutional institute of impeachment: certain
top officials of state power-the President of the Republic, the
President and justices of the Constitutional Court, the
President and justices of the Supreme Court, the President and
judges of the Court of Appeal-for gross violation of the
Constitution, breach of the oath or disclosure of commission of
a crime, may be removed from office according to the procedure
for impeachment proceedings, and the mandate of a member of the
Seimas may also revoked according to the procedure for
impeachment proceedings. The application of impeachment, an
institute of a special parliamentary procedure, and the
constitutional sanction-removal from office-which are
entrenched in the Constitution, in respect of the President of
the Republic, the President and justices of the Constitutional
Court, the President and justices of the Supreme Court, the
President and judges of the Court of Appeal, is one of the
measures of self-protection of the state community, the civil
Nation, a way of its own defence from the said top officials of
state power, who ignore the Constitution and law, in a manner
when they are prohibited from holding certain office, as they
do not fulfil their obligation unconditionally to follow the
Constitution and law, follow the interests of the Nation and
the State of Lithuania, and who have disgraced state authority
by their actions.
4. The Constitution as a legal act is expressed in a
certain textual form, and has certain verbal expression.
However, since it is impossible to treat law solely as a text
in which expressis verbis certain legal provisions and rules of
behaviour are set forth, thus, also, it is impossible to treat
the Constitution as a legal reality solely in its textual form.
The Constitution may not be understood only as an aggregate of
explicit provisions. The Constitution shall be an integral and
directly applicable act (Paragraph 1 of Article 6 of the
Constitution). The nature of the Constitution as the act of the
supreme legal power itself, and the idea of the
constitutionality imply that the Constitution may not have and
has no gaps, so there may not be and there is no such legal
regulation established in legal acts of lower power which may
not be assessed in respect of its compliance with the
Constitution. The Constitution as a legal reality is comprised
of various provisions, the constitutional norms and the
constitutional principles, which are directly consolidated in
various formulations of the Constitution or derived from them.
Some constitutional principles are entrenched in constitutional
norms formulated expressis verbis, others, although not
entrenched therein expressis verbis, are reflected in them and
are derived from the constitutional norms, as well as from
other constitutional principles reflected in these norms, from
the entirety of the constitutional legal regulation, from the
meaning of the Constitution as the act which consolidates and
protects the system of major values of the state community, the
civil Nation, and which provides the guidelines for the entire
legal system. There may not exist and there is no contradiction
between the constitutional principles and the constitutional
norms-all the constitutional norms and constitutional
principles form a harmonious system. It is the constitutional
principles that organise all the provisions of the Constitution
into a harmonious entirety, and thus do not permit the
existence in the Constitution of internal contradictions or
such an interpretation thereof which distorts and denies the
essence of any provision of the Constitution, or any value
entrenched in and protected by the Constitution. The
constitutional principles reveal not only the letter, but also
the spirit of the Constitution-the values and objectives
entrenched in the Constitution by the Nation which chose
certain textual form and verbal expression of its provisions,
which defined certain norms of the Constitution, and which
explicitly or implicitly established certain constitutional
legal regulation. Thus, there may not exist and there is no
contradiction not only between the constitutional principles
and the constitutional norms, but also between the spirit of
the Constitution and the letter of the Constitution: the letter
of the Constitution may not be interpreted or applied in a
manner which denies the spirit of the Constitution, which may
be understood only when perceiving the constitutional legal
regulation as an entirety and only upon the evaluation of the
purpose of the Constitution as a social agreement and an act of
the supreme legal power. The spirit of the Constitution is
expressed by the entirety of the constitutional legal
regulation, all its provisions-both the norms of the
Constitution directly set forth in the text of the
Constitution, and the principles of the Constitution, including
those that originate from the entirety of the constitutional
legal regulation and the meaning of the Constitution as an act
which consolidates and protects the system of major values of
the Nation, and which provides the guidelines for the whole
legal system.
The Constitutional Court has held more than once that all
the provisions of the Constitution are linked to each other and
constitute an integral and harmonious system, that there is a
balance between the values entrenched in the Constitution, that
not a single provision of the Constitution may be interpreted
in a manner distorting or denying the content of any other
provision of the Constitution, as this would distort the
essence of the entire constitutional legal regulation, and
disturb the balance between the constitutional values
(Constitutional Court rulings of 24 September 1998, 23 October
2002, 25 November 2002, 4 March 2003, 4 July 2003, 30 September
2003, 3 December 2003, and 15 April 2004).
5. It is due to the fact that the Constitution is an
integral act, that it is comprised of various provisions-both
the constitutional norms, and the constitutional
principles-among which there may not exist and there is no
contradiction, and which constitute a harmonious system, that
the constitutional principles are derived from the entirety of
the constitutional legal regulation expressing the spirit of
the Constitution, and from the meaning of the Constitution as
the act consolidating and protecting the system of the major
values of the state community, the civil Nation, and which
provides the guidelines for the entire legal system, and due to
the fact that the letter of the Constitution may not be
interpreted or applied in the manner which denies the spirit of
the Constitution, the Constitution may not be interpreted only
literally by applying the sole linguistic (verbal) method. When
interpreting the Constitution, one must apply various methods
of interpretation of law: systemic, the one of general
principles of law, logical, teleological, the one of intentions
of the legislator, the one of precedents, historical,
comparative, etc. Only such comprehensive interpretation of the
Constitution may provide conditions for realisation of the
purpose of the Constitution as a social agreement and the act
of the supreme legal power, and for ensuring that the meaning
of the Constitution will not be deviated from, that the spirit
of the Constitution will not be denied, and that the values
upon which the Nation has based the Constitution adopted by it
will be consolidated in reality.
III
1. 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, execute state power.
Under Article 77 of the Constitution, the President of the
Republic is the Head of State, he represents the State of
Lithuania and performs everything that he is charged with by
the Constitution and laws.
When interpreting Article 77 of the Constitution, in its 8
May 2000 ruling the Constitutional Court held: "Only one person
acquires the status of the Head of State for the period
determined in the Constitution, i.e. the President of the
Republic who is elected by citizens of the Republic of
Lithuania. The legal status of the President of the Republic as
the Head of State is an individual one, different from that of
the rest of the citizens."
According to the Constitution, the legal status of the
President of the Republic, the Head of State, is an individual
one and it differs from the legal status of all the other state
officials. The individual and exceptional constitutional legal
status of the President of the Republic as the Head of State is
revealed in various provisions of the Constitution which
consolidate: the inviolability of the person of the President
of the Republic; impossibility for the President of the
Republic to be a Seimas member or to hold another office, or
receive any remuneration other than the salary established for
the President of the Republic as well as compensation for
creative activities; a duty for the person elected President of
the Republic to suspend his activities in political parties and
political organisations until the beginning of a new election
campaign for the post of the President of the Republic;
requirements for the candidates seeking the post of the
President of the Republic and the bases and procedure of the
elections of the President of the Republic; the oath of the
President of the Republic; the powers of the President of the
Republic, their commencement and termination, etc.
(Constitutional Court ruling of 19 June 2002).
The Constitution has established significant powers for
the President of the Republic as the Head of State. A part of
the constitutional powers of the President of the Republic, the
Head of State, is linked with an opportunity to form other
institutions executing state power and/or to exert influence on
their activity, the adopted decisions, and on the lawmaking
process.
For example, the President of the Republic has the right
of legislative initiative in the Seimas (Paragraph 1 of Article
68 of the Constitution). He signs and officially promulgates
the adopted laws related to alteration of the Constitution
(Paragraph 1 of Article 149 of the Constitution), the laws
adopted by the Seimas (Paragraph 1 of Article 70 of the
Constitution), as well as the laws adopted by referendum
(Paragraph 3 of Article 71 of the Constitution). The President
of the Republic has the right to refer the adopted by the
Seimas law back to the Seimas together with relevant reasons
for reconsideration (Paragraph 1 of Article 71 of the
Constitution) and may present amendments and supplements to the
law (Paragraph 2 of Article 72 of the Constitution). Under
Article 84 of the Constitution, the President of the Republic
decides basic foreign policy issues and, together with the
Government, conducts foreign policy (Item 1); signs
international treaties of the Republic of Lithuania and
presents them to the Seimas for ratification (Item 2); upon
approval of the Seimas, appoints the Prime Minister, charges
him to form the Government, and confirms its composition (Item
4); upon approval of the Seimas, dismisses the Prime Minister
(Item 5); appoints and dismisses Ministers upon the
presentation by the Prime Minister (Item 9); presents
candidatures for justices of the Supreme Court to the Seimas,
and, upon the appointment of all the justices of the Supreme
Court, from among them presents the President of the Supreme
Court to the Seimas; appoints judges of the Court of Appeal,
and from among them-the President of the Court of Appeal
provided their candidatures have been approved of by the
Seimas; appoints judges and presidents of regional and local
courts, and changes their places of work; in cases provided for
by law, presents that the Seimas dismiss judges; upon approval
of the Seimas, appoints and dismisses the Prosecutor General of
the Republic of Lithuania (Item 11); presents to the Seimas the
candidatures for three justices of the Constitutional Court,
and, upon the appointment of all the justices of the
Constitutional Court, presents, from among them, a candidature
for the President of the Constitutional Court to the Seimas
(Item 12); presents to the Seimas candidatures for the State
Controller and the President of the Board of the Bank of
Lithuania; may present that the Seimas express no-confidence in
them (Item 13); appoints and dismisses, upon the approval of
the Seimas, the Chief of the Army and the Head of the Security
Service (Item 14); confers high military ranks (Item 15);
adopts, in the event of an armed attack which threatens state
sovereignty or territorial integrity, decisions concerning
defence against such armed aggression, the imposition of
martial law, as well as mobilisation, and presents these
decisions to the next sitting of the Seimas for confirmation
(Item 16); declares a state of emergency in accordance with the
procedure and in cases established by law, and presents this
decision to the next sitting of the Seimas for confirmation
(Item 17). Paragraph 4 of Article 112 of the Constitution
provides that the President of the Republic appoints judges and
presidents of regional, local, and specialised courts, and
transfers them to other places of work. Under Paragraph 2 of
Article 140 of the Constitution, the President of the Republic
is the Supreme Commander of the Armed Forces. The President of
the Republic heads the State Defence Council (Paragraph 1 of
Article 140 of the Constitution).
The Constitution provides for other significant powers of
the President of the Republic, the Head of State, as well:
under the conditions established in Paragraph 2 of Article 58
of the Constitution the President of the Republic may announce
pre-term elections to the Seimas (Paragraph 2 of Article 58 of
the Constitution), the President of the Republic grants
citizenship of the Republic of Lithuania in accordance with the
procedure established by law (Item 21 of Article 84 of the
Constitution), confers state awards (Item 22 of Article 84 of
the Constitution), grants pardons to convicted persons (Item 23
of Article 84 of the Constitution), etc.
It was already mentioned that, under the Constitution, the
President of the Republic performs all the actions assigned to
him by the Constitution and laws. Various powers of the
President of the Republic are established not only in the
Constitution, but in the laws adopted by the Seimas as well.
It is clear from the said provisions of the Constitution
that the President of the Republic, the Head of State, has also
the constitutional powers, when exercising which he may
strongly influence other institutions executing state power,
i.e. the Seimas which exercises the legislative power, and the
Government, an institution of the executive power; the
President of the Republic, the Head of State, has also
significant powers in forming the judicial power. The
functioning of other institutions of state power considerably
depends upon the execution of the powers by the President of
the Republic, the Head of State, which are established for him
in the Constitution.
It needs to be noted that from the Constitution arises a
duty of the President of the Republic, as the Head of State, to
act, while exercising the powers established for him in the
Constitution and laws, so that his actions would maintain
harmonic interaction between the institutions executing state
power, that the citizens of the Republic of Lithuania, the
state community, could trust in the institution of the
President of the Republic, the Head of State, that the State of
Lithuania would be properly represented in its relations with
other countries and international organisation, that the State
of Lithuania would be able to duly perform its international
obligations, and that it might be ensured that other entities
of international relations (foreign states, international
organisations, etc.) could duly perform their obligations to
the State of Lithuania. The due fulfilment of the said
constitutional duty of the President of the Republic, the Head
of State, is an essential condition of the trust of the
citizens in the State of Lithuania itself, as the general good
of the entire society, and its institutions, as well as a
condition of the trust of other entities of international
relations in the State of Lithuania as well.
Thus, when evaluating the constitutional legal status of
the President of the Republic, the Head of State, it needs to
be noted that this status is not only the sum of powers
expressis verbis established for the President of the Republic
by the Constitution. The President of the Republic, as the Head
of State elected directly by the Nation, symbolises the State
of Lithuania, the values of its society, and personifies the
Republic of Lithuania in international relations.
The constitutional powers of the President of the Republic
and the guarantees established for him in the Constitution, as
well as the constitutional legal status of the President of the
Republic as the Head of State, imply also his special
responsibility against the community of the state-the civil
Nation.
2. Paragraph 1 of Article 78 of the Constitution provides
that a citizen of the Republic of Lithuania by birth, who has
resided in Lithuania for not less than the past three years, if
he has reached the age of not less than 40 prior to the
election day, and if he may be elected a member of the Seimas,
may be elected President of the Republic. Under Paragraph 1 of
Article 56 of the Constitution, any citizen of the Republic of
Lithuania who is not bound by an oath or pledge to a foreign
state, and who, on the election day, is not younger than 25
years of age and permanently resides in Lithuania, may be
elected a member of the Seimas. Paragraph 2 of this article
provides that persons who have not fulfilled punishment imposed
on them by a court judgement, as well as persons recognised as
incapable by a court, may not be elected members of the Seimas.
According to Paragraph 1 of Article 79 of the Constitution, any
citizen who meets the conditions set forth in the First
Paragraph of Article 78 and has collected the signatures of not
less than 20,000 voters shall be registered as a presidential
candidate.
3. Paragraph 1 of Article 82 of the Constitution provides
that when beginning to hold office the President of the
Republic takes an oath to the Nation to be faithful to the
Republic of Lithuania and the Constitution, to conscientiously
fulfil the duties of his office, and to be equally just to all.
The oath of the elected President of the Republic reflects the
major universal constitutional values which are linked by the
Nation with the office of the President of the Republic-the
Head of State; the said constitutional values are inseparable
from each other, the content of these values is much-inclusive
and comprises many other constitutional obligations of no less
significance. The provision of Paragraph 2 of Article 77 of the
Constitution that the President of the Republic performs
everything that he is charged with by the Constitution and
laws, when one takes account of the content of the oath of the
President of the Republic which is established in Paragraph 1
of Article 82 of the Constitution, means that the President of
the Republic, when implementing all the powers that he is
charged with by the Constitution and laws, must follow only the
Constitution and laws and may not violate them, that the
President of the Republic must act only in the interests of the
Nation and the State of Lithuania, that the President of the
Republic may not act by following the objectives or interests
which are not in line with the Constitution and laws, the
interests of the Nation and the State of Lithuania, and the
public interests, as well as that the President of the Republic
may not bring his personal interests or interests of some group
above the interests of the society and the state, or act in a
way which discredits the state power.
It needs to be noted that the elected President of the
Republic-the Head of State elected directly by the Nation-is
the sole person indicated in the Constitution who takes an oath
to the special subject holding the sovereignty, i.e. the
elected President of the Republic takes an oath to the Nation.
It should be stressed that the oath of the President of
the Republic is not a mere formal or symbolic act, it is not
only a solemn utterance of words of the oath and signing the
act of the oath.
Since the institute of the oath of the President of the
Republic and the content of the oath is entrenched in the
Constitution, the oath given by the President of the Republic
bears the constitutional legal meaning and gives rise to
constitutional legal effects: before he takes the oath, the
President of the Republic may not begin to hold office; refusal
to take the oath, taking the oath with certain reservations or
changing the text of the oath, refusal to sign the text of the
oath of the President of the Republic means, under the
Constitution, that the President of the Republic may not begin
to hold office; in case the person elected President of the
Republic does not take the oath, new elections of the President
of the Republic are to be announced.
The act of the oath of the President of the Republic is
constitutionally legally important also because the President
of the Republic, the Head of State, by taking an oath to the
Nation, publicly and solemnly accepts an obligation to act in
line with the obligations of the oath and to breach the oath
under no circumstances; when the President of the Republic has
taken the oath, his duty emerges to act only in the way he is
obliged to by the oath given to the Nation, and to breach this
oath under no circumstances. According to Article 74 of the
Constitution, the breach of oath is one of the bases for
removal of the President of the Republic from office according
to the procedure for impeachment proceedings.
The Constitutional Court has held that breach of the oath
is, alongside, a gross violation of the Constitution, while a
gross violation of the Constitution is, alongside, breach of
the oath (Constitutional Court ruling of 30 December 2003,
Constitutional Court conclusion of 31 March 2004).
4. It was mentioned that impeachment is a special
parliamentary procedure, when the top state officials indicated
in Article 74 of the Constitution are removed from office:
under Article 74 of the Constitution, the President of the
Republic, the President and justices of the Constitutional
Court, the President and justices of the Supreme Court, the
President and judges of the Court of Appeal, may be removed
from office in accordance with the procedure for impeachment
proceedings, and the mandate of a member of the Seimas may be
revoked in accordance with the procedure for impeachment
proceedings. It needs to be stressed that impeachment is
possible only if there are the bases indicated in Article 74 of
the Constitution: gross violation of the Constitution, breach
of oath or disclosure of commission of a crime.
In its ruling of 15 April 2004, the Constitutional Court
held that under the Constitution, two institutions of state
power enjoy powers in impeachment proceedings, i.e. the Seimas
and the Constitutional Court. Each of these institutions of
state power under the Constitution are assigned powers which
are in line with their functions during impeachment procedure:
an impeachment case may be instituted only upon proposal
(initiative) of Seimas members; a conclusion as to whether
concrete actions of the person against whom an impeachment case
has been instituted are in conflict with the Constitution is
presented by the Constitutional Court; in case the
Constitutional Court concludes that the person against whom an
impeachment case has been instituted has grossly violated the
Constitution, the Seimas may remove such a person from office
or may revoke his mandate of the Seimas member by not less than
3/5 majority vote of all the members of the Seimas.
Under the Constitution, only the Constitutional Court has
the powers to decide whether the persons indicated in Article
74 of the Constitution, against whom an impeachment procedure
has been initiated, have grossly violated the Constitution (in
view of the fact that the gross violation of the Constitution
constitutes also the breach of oath-to decide whether such
persons breached the oath). The conclusion of the Constitution
Court that a person has grossly violated the Constitution (and
thus has breach the oath) is final. No state institution, no
state official, no other subject may change or revoke such a
conclusion of the Constitution Court. Under the Constitution,
such a conclusion may not be changed nor revoked either by
referendum or elections, or in any other way.
Article 2 of the Constitution provides that sovereignty
belongs to the Nation. Article 4 of the Constitution stipulates
that the Nation executes its supreme sovereign power either
directly or through its democratically elected representatives.
According to Paragraph 1 of Article 55 of the Constitution
members of the Seimas are representatives of the Nation.
Therefore, under the Constitution, only the Seimas is the
representation of the Nation, through which the Nation executes
its supreme sovereign power. It should be stressed that,
according to the Constitution, there may not be and there is no
contradiction between the supreme sovereign power executed by
the Nation directly, and the supreme sovereign power executed
by the Nation through its democratically elected
representatives-members of the Seimas. Thus, under the
Constitution, there may not be and there is no contradiction
between the Nation and its representation, the Seimas: the
Seimas implements the powers which are established for it by
the Nation in the Constitution adopted by it.
According to the Constitution, only the Seimas has powers
to decide whether, in case there are the bases provided for in
Article 74 of the Constitution, according to the procedure for
impeachment proceedings, to remove a person from office or to
revoke his mandate of a member of the Seimas-these issues may
not be decided by referendum or elections, and by no other
state institution, state official or other subject.
The Seimas as the representation of the Nation, through
which the Nation executes its supreme sovereign power, acts
according to the powers established for it by the Nation in the
Constitution. This means that a decision of the Seimas as the
representation of the Nation to remove a state official
indicated in Article 74 of the Constitution from office, or to
revoke his mandate of a member of the Seimas according to the
procedure for impeachment proceedings is, alongside, execution
of sovereign powers of the Nation through its democratically
elected representatives. As, under the Constitution, only the
Seimas may decide whether to remove a certain state official
specified in Article 74 of the Constitution from office, or to
revoke his mandate of a member of the Seimas according to the
procedure for impeachment proceedings, therefore, such a
decision of the Seimas may not be changed or revoked by
referendum or elections, or in any other way. Thus, if the
Seimas, according to the procedure for impeachment proceedings,
while following the Constitution, removed a state official
specified in Article 74 of the Constitution from office or
revoked his mandate of a member of the Seimas, then such a
decision of the Seimas is final.
5. The President of the Republic is one of the state
officials indicated in Article 74 of the Constitution who may
be removed by the Seimas from office according to the procedure
for impeachment proceedings. Impeachment of the President of
the Republic at the Seimas is not a legal dispute of the
President of the Republic, one of the institutions executing
state power, with the Seimas, another institution executing
state power. Impeachment of the President of the Republic is a
means of the constitutional liability of a person who holds the
office of the President of the Republic to the Nation: the
Nation through its representation, the Seimas, decides whether
a person holding the office of the President of the Republic,
and who has grossly violated the Constitution, breached the
oath, or committed a crime, is to be removed from office.
Gross violation of the Constitution or breach of oath
undermines the trust in the institution of the President of the
Republic and, alongside, it weakens the trust in the entire
state authority and the State of Lithuania. Impeachment, when a
person who has grossly violated the Constitution, or breached
the oath, is removed from office of the President of the
Republic, is one of the ways of protection of the state as the
common good of the society which is provided for in the
Constitution.
It needs to be stressed that under the Constitution, a
person in respect of whom the Seimas, following the conclusion
of the Constitutional Court that the President of the Republic
has grossly violated the Constitution and breached the oath,
applied the constitutional sanction-removed him from office-may
not evade the constitutional liability either by new elections
of the President of the Republic, or referendum, or in any
other way. It should also be stressed that neither a
referendum, nor new elections of the President of the Republic
may be and, under the Constitution, are a way of expressing the
trust or mistrust of the citizens in the Seimas, which has
removed, according to the procedure for impeachment
proceedings, the President of the Republic from office.
6. Under the Constitution, only the Seimas has the power
to decide whether to remove the President of the Republic from
office according to the procedure for impeachment proceedings
for gross violation of the Constitution, breach of oath, or
commission of a crime. When evaluating the relationship between
the constitutional powers of the Constitutional Court and the
Seimas during the impeachment procedure it needs to be noted
that the conclusion of the Constitutional Court that the
actions of the President of the Republic are (are not) in
conflict with the Constitution, are binding to the Seimas in
that, according to the Constitution, the Seimas has no power to
decide whether the conclusion of the Constitutional Court is
well-founded and lawful, the legal fact that the actions of the
President of the Republic are (are not) in conflict with the
Constitution is established only by the Constitutional Court
(Constitution Court conclusion of 31 March 2004). Although
members of the Seimas, when deciding the issue of removal of
the President of the Republic from office for gross violation
of the Constitution, or breach of oath, vote freely, still this
does not mean that members of the Seimas, when deciding whether
to remove the President of the Republic from office for gross
violation of the Constitution, or breach of oath according to
the procedure for impeachment proceedings, are not bound by the
oath of the member of the Seimas taken by them, which obligates
the member of the Seimas in his activity to follow the
Constitution, the interests of the state and his conscience,
and not be bound by any mandates. The free mandate of a member
of the Seimas, which is entrenched in the Constitution, may not
be understood only as a permission to act at one's own
discretion, following only one's conscience and to ignore the
Constitution. The Constitution implies such a notion of
discretion of a member of the Seimas and conscience of a member
of the Seimas, which contains no gap between the discretion of
a member of the Seimas and the conscience of a member of the
Seimas, and the requirements of the Constitution, as well as
the values preserved and protected by the Constitution:
according to the Constitution, the discretion of a member of
the Seimas and his conscience should be oriented towards the
Constitution, and the interests of the Nation and the State of
Lithuania. Therefore, an especially great responsibility is
borne by the Seimas, which decides whether to remove, according
to the procedure for impeachment proceedings, the President of
the Republic from office for gross violation of the
Constitution and breach of oath: in a democratic state under
the rule of law a person, who has grossly violated the
Constitution, or breached the oath, should not evade the
constitutional liability-the removal from office.
The Constitution does not provide that upon a lapse of
certain period of time the President of the Republic, whose
actions were recognised by the Constitutional Court as those by
which the Constitution was grossly violated, and he himself was
recognised as the one who has breached the oath, and who has
been removed from office by the Seimas for the breach of oath
and gross violation of the Constitution, might be treated as
the one who has not breached the oath or grossly violated the
Constitution. The President of the Republic, whose actions were
recognised by the Constitutional Court as those which grossly
violated the Constitution, and who was removed from office by
the Seimas, the representation of the Nation, according to the
procedure for impeachment proceedings, under the Constitution,
will always remain as the one who breached the oath to the
Nation and grossly violated the Constitution, and who was
removed from the office of the President of the Republic for
the said reasons.
It was already mentioned that the Constitution
consolidates such an organisation of the institutions executing
state power and procedure of forming thereof, where all the
institutions executing state power as well as other
institutions should be formed only from the citizens who
without reservations obey the Constitution adopted by the
Nation, and who, while in office, unconditionally follow the
Constitution, law, and the interests of the Nation and the
State of Lithuania. It was also mentioned that the elected
President of the Republic, according to the Constitution, may
begin to hold office only after he takes an oath to the Nation
to be faithful to the Republic of Lithuania and the
Constitution, to conscientiously perform his duties, and to be
equally just to all.
A person, who was elected President of the Republic, who
took the oath of the President to the Nation, and who
subsequently breached it and thus grossly violated the
Constitution, and who was, according to the procedure for
impeachment proceedings, removed from office by the Seimas, the
representation of the Nation, may not, under the Constitution,
take an oath to the Nation once again, as there would always
exist a reasonable doubt, which would never disappear, related
to the certainty and reliability of his repeatedly taken oath,
and thus related to the fact whether the person who takes the
oath will really perform his duties of the President of the
Republic in the manner prescribed by the oath to the Nation,
whether this person will not breach the oath to the Nation
again, in other words, whether the oath repeatedly taken by
this person to the Nation will not be fictitious.
7. It was mentioned that impeachment is one of the form of
public and democratic control over the state officials, one of
the measures of self-protection of the state community, the
civil Nation, the way of its defence against the aforementioned
top officials of state power, who disregard the Constitution
and laws, where they are no longer permitted to hold certain
office, as they do not fulfil their obligation to
unconditionally follow the Constitution, law, as well as the
interests of the Nation and the State of Lithuania. It was also
mentioned that the President of the Republic, whose actions
were recognised by the Constitutional Court as the ones that
grossly violated the Constitution, and who has been removed
from the office of the President of the Republic by the Seimas,
the representation of the Nation, according to the procedure
for impeachment proceedings, will always remain the one who
breached the oath taken to the Nation, who grossly violated the
Constitution and who was removed from office of the President
of the Republic for this reason.
The removal of the President of the Republic from office,
as well as of any other person indicated in Article 74 of the
Constitution, who has breached the oath and grossly violated
the Constitution, according to the procedure for impeachment
proceedings, is not an end in itself. The purpose of the
constitutional institute of impeachment is not only a one-time
removal of such persons from office, but it is much broader: it
purpose is to prevent the persons who have grossly violated the
Constitution and breached the oath from holding the office
provided for in the Constitution, the beginning of which,
according to the Constitution, is linked with taking the oath
specified in the Constitution. The content of the
constitutional sanction (the constitutional liability) applied
upon the procedure for impeachment proceedings comprises also
the removal of the person who has grossly violated the
Constitution and breached the oath from office, and the
subsequent prohibition for such a person from holding the
office provided for in the Constitution in the future, which a
person may begin to hold only upon taking the oath established
in the Constitution. The said prohibition to hold the office
established in the Constitution, which a person may begin to
hold only upon taking the oath provided for in the
Constitution, is not a repeated punishment of the person who
has grossly violated the Constitution and breached the oath,
not a second "punishment" imposed on the person for the same
violation of the Constitution, but a constituent part of the
constitutional sanction, the removal from office, the deep
essence of the impeachment as the measure of self-protection of
the state community, the civil Nation, and the constitutional
liability, its aim and purpose, which is to ensure that a
person who has grossly violated the Constitution and breached
the oath, and has been removed from office by the Seimas for
the said reason, could never hold the office the beginning of
which is related to the taking of the oath specified in the
Constitution.
The Constitution consolidates the legal regulation which
provides that a person, who has been removed from the office of
the President of the Republic by the Seimas according to the
procedure for impeachment proceedings for the breach of oath
and gross violation of the Constitution, may never be elected
President of the Republic. A different interpretation of the
provisions of the Constitution would make the institute of
constitutional impeachment for gross violation of the
Constitution and breach of oath legally meaningless, pointless,
it would be incompatible with the essence and purpose of the
constitutional liability for the breach of oath and gross
violation of the Constitution, with the essence and purpose of
the oath established in the Constitution as a constitutional
value, as well as with the requirement, which emerges from the
overall constitutional legal regulation, that all the
institutions executing state power and other state institutions
be formed only from the citizens who without reservations obey
the Constitution adopted by the Nation, and who, while in
office, unconditionally follow the Constitution, law, as well
as the interests of the Nation and the State of Lithuania. A
different interpretation of the provisions of the Constitution
would be inconsistent with both the constitutional principle of
a state under the rule of law and the constitutional imperative
of an open, just, and harmonious civil society.
8. One of the bases established in Article 74 of the
Constitution, under which a certain official specified in
Article 74 of the Constitution may be removed from office or
his mandate of a Seimas member may be revoked, is "upon
disclosure of the commission of a crime". When revealing, what
constitutional consequences emerge in respect to the person due
to the fact that he has been removed from office, or his
mandate of a Seimas member has been revoked according to the
procedure for impeachment proceedings for commission of a
crime, account must also be taken of the provision entrenched
in Paragraph 2 of Article 56 of the Constitution, that a person
who has not fulfilled punishment imposed on him by a court
judgement may not be elected a member of the Seimas. This
constitutional provision also means that if a person has been
sentenced by court for the commission of a crime and has served
the punishment imposed on him by the court judgement, he may be
elected a member of the Seimas.
In this context it should be noted that crimes provided
for in the criminal law may be not only grave or minor, they
may be committed not only intentionally but due to negligence,
they may be more or less dangerous, they may cause especially
severe consequences or the consequences which are not that
severe, they may be committed due to selfish or unselfish
intentions, they may be related or not related to the duties
performed (the office held), etc. The commission of a crime in
itself does not mean that a person has alongside violated the
Constitution, or breached the oath, or that the person in his
activity did not follow the Constitution, the interests of the
Nation and the State of Lithuania, etc. Some crimes may even be
of a type that they are not directly linked with breach of oath
provided for in the Constitution or with gross violation of the
Constitution. The Constitution itself (Paragraph 2 of Article
56) has established expressis verbis an exception in respect to
the consequences which arise due to the fact that the person
has been removed from office, his mandate of a Seimas member
has been revoked according to the procedure for impeachment
proceedings for the commission of a crime. It emerges from the
provisions of Article 74 and Paragraph 2 of Article 56 of the
Constitution that a crime, by which the Constitution has not
been grossly violated and the oath has not been breached, does
not cause the same constitutional legal effects as the crime by
which the Constitution is grossly violated or the oath is
breached. Paragraph 2 of Article 56 of the Constitution,
according to which a person, who has fulfilled punishment
imposed on him by a court judgement, may be elected member of
the Seimas, by providing an exception in respect to the
consequences which emerge upon application of the sanctions set
forth in Article 74 of the Constitution for gross violation of
the Constitution and breach of oath, means that the
Constitution not only does not provide that a person, who has
been removed from office of the President of the Republic
according to the procedure for impeachment proceedings for the
commission of a crime by which the Constitution has not been
grossly violated or the oath has not been breached, but the
Constitution, by making the said exception, expressis verbis
permits such a person to be elected a member of the Seimas.
It was mentioned that in a democratic state under the rule
of law a person, who has grossly violated the Constitution and
breached the oath, should not evade the constitutional
liability-the removal from office. Therefore, the Seimas, which
decides whether to remove, according to the procedure for
impeachment proceedings, a person from office or to revoke his
mandate of a member of the Seimas for the commission of a
crime, under the Constitution, bears the responsibility to
elucidate whether the Constitution was grossly violated and the
oath was breached by the commission of the crime.
Taking account of the fact that one of the conditions
established in Paragraph 1 of Article 78 of the Constitution,
when a person may not be elected President of the Republic, is
that "if he may be elected a member of the Seimas", it is to be
held that the Constitution does not establish that a person,
who has been removed by the Seimas from office or whose mandate
of a member of the Seimas has been revoked according to the
procedure for impeachment proceedings for the commission of the
crime by which the Constitution has not been grossly violated
or the oath has not been breached, may not be elected President
of the Republic (a permission to be elected is established).
9. Under Article 141 of the Constitution, persons
performing actual military service or alternative service, as
well as officers of the national defence system, of the police
and the Interior, non-commissioned officers, re-enlistees and
other paid officials of paramilitary and security services who
have not retired to the reserve may not be members of the
Seimas and of municipal councils; they may not hold elected or
appointed office in state civil service, and may not take part
in the activities of political parties and political
organisations. The President of the Republic may not be a
member of the Seimas (Paragraph 1 of Article 83 of the
Constitution). Under Paragraph 1 of Article 113 of the
Constitution, a 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; under Paragraph 2 of this
article, a judge may not participate in the activities of
political parties and other political organisations; thus,
under the Constitution, a judge may not be a member of the
Seimas.
In its ruling of 24 December 2002, the Constitutional
Court held that the said requirements of the Constitution do
not mean that the aforementioned persons have no right to seek
to be elected members of municipal councils (i.e. it does not
mean that they do not enjoy the passive electoral right in the
election of members of municipal councils), but that in cases
when there occurs a legal situation when a person 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.
Under the Constitution, state administration and local
self-government are two different systems of public power
(Constitutional Court ruling of 24 December 2002).
Municipalities do not execute state administration; state
administration is performed through institutions of state power
and other state institutions specified in the Constitution and
laws, meanwhile it is the right of self-government which is
exercised through municipal councils.
Within the context of the case at issue it needs to be
noted that the striving for an open, just, and harmonious civil
society and state under the rule of law, entrenched in the
Constitution, and the constitutional principle of free and
democratic elections imply that no conditions should be created
for judges or persons, who perform actual military service or
alternative service, as well as officers of the national
defence system, of the police and the Interior,
non-commissioned officers, re-enlistees and other paid
officials of paramilitary and security services who have not
retired to the reserve, to use their powers while seeking to
become members of the Seimas, and thus for any conflict between
the official duties of the person and his private interest to
be elected a member of the Seimas to emerge. Taking account of
the fact that a possibility for judges and other persons
specified in Article 141 of the Constitution to seek to be
elected members of the Seimas is to be evaluated differently
from their possibility to be elected members of municipal
councils-under the Constitution, as long as they perform
respective duties, these persons have no right to be elected
members of the Seimas.
It was mentioned that, under Paragraph 1 of Article 78 of
the Constitution, a citizen of the Republic of Lithuania, who
inter alia may be elected a member of the Seimas, may be
elected President of the Republic. Since, under the
Constitution, judges and the persons specified in Article 141
of the Constitution have no right to be elected members of the
Seimas until they hold respective office, thus they may not be
elected President of the Republic as well.
Under Paragraph 3 of Article 104 of the Constitution, the
restrictions on work and political activities which are
established for judges apply also to justices of the
Constitutional Court. Thus the constitutional restriction to be
elected a member of the Seimas and the President of the
Republic also applies to justices of the Constitutional Court.
10. Paragraph 2 of Article 34 of the Constitution reads:
"The right to be elected shall be established by the
Constitution of the Republic of Lithuania and by the election
laws."
If Paragraph 2 of Article 34 of the Constitution is
construed only literally by applying the linguistic method of
interpretation of law, it would be possible to state that it is
possible to establish by the election laws, thus by the
Republic of Lithuania Law on Presidential Elections as well,
also the requirements (conditions) for a person, who may be
elected President of the Republic, which are not provided by
the Constitution.
It was mentioned that the Constitution is an integral act,
that all the provisions of the Constitution are linked with
each other and comprise a harmonious system, that none of the
provisions of the Constitution may be interpreted only
literally, that none of the provisions of the Constitution may
be interpreted in a way, which distorts or denies the content
of any other constitutional provision, as this would deny the
essence of the entire constitutional legal regulation.
In the context of the case at issue it needs to be noted
that requirements to the person, who may be elected President
of the Republic, are established in the Constitution. So the
provision "the right to be elected shall be established <...>
by the election laws" of Paragraph 2 of Article 34 of the
Constitution means that, under the Constitution, the legislator
has powers to establish in the election laws, thus in the
Republic of Lithuania Law on Presidential Elections as well,
the requirements (conditions) to a person, who may be elected
President of the Republic, which are constitutionally grounded.
The Republic of Lithuania Law on Presidential Elections may not
establish requirements (conditions) which distort or deny the
requirements (conditions) established in the Constitution to a
person, who may be elected President of the Republic. The
provision "the right to be elected shall be established <...>
by the election laws" of Paragraph 2 of Article 34 of the
Constitution also means that in the election laws, thus in the
Republic of Lithuania Law on Presidential Elections as well,
the procedure of elections of the President of the Republic,
the proceedings of implementation of the rights of a person to
be elected President of the Republic, etc. should be regulated.
A different interpretation of the provisions of Paragraph 2 of
Article 34 of the Constitution would make the constitutional
legal regulation, which establishes requirements (conditions)
to a person, who may be elected President of the Republic,
legally meaningless, because, in case the laws establish a
different legal regulation, which competes with the
constitutional regulation, the constitutional norms and
principles establishing the said requirements (conditions) and
bearing the supreme legal power, would be denied. This would be
inconsistent with the principle of the supremacy of the
Constitution, with the provision of Paragraph 1 of Article 6 of
the Constitution that the Constitution is directly applicable
legal act, and with Paragraph 1 of Article 7 of the
Constitution, under which any law or other act, which is
inconsistent with the Constitution, is invalid.
11. Under the Constitution, not only the President of the
Republic, the Head of State, but also members of the Seimas,
members of the Government, justices of the Constitutional
Court, judges of other courts, and the State Controller, must
take an oath.
Paragraph 2 of Article 59 of the Constitution provides
that the elected member of the Seimas acquires all the rights
of a representative of the Nation only after taking an oath in
the Seimas to be faithful to the Republic of Lithuania; the
text of the oath of a member of the Seimas is established in
Article 5 of the Law of the Republic of Lithuania "On the
Procedure of Entry into Effect of the Constitution of the
Republic of Lithuania" (which is a constituent part of the
Constitution). Paragraph 3 of Article 59 of the Constitution
stipulates that a member of the Seimas who either does not take
an oath in accordance with the procedure established by law, or
who takes a conditional oath, loses the mandate of a member of
the Seimas, and the Seimas adopts a corresponding resolution
thereon. Article 93 of the Constitution provides that while
taking office, the Prime Minister and the Ministers, in the
Seimas take an oath to be faithful to the Republic of Lithuania
and to observe the Constitution and laws, and the text of the
oath is established in the Law on the Government. Paragraph 2
of Article 104 of the Constitution provides that before
entering office, justices of the Constitutional Court shall
take an oath in the Seimas to be faithful to the Republic of
Lithuania and the Constitution. Paragraph 6 of Article 112 of
the Constitution provides that a person appointed a judge takes
an oath, in accordance with the procedure established by law,
to be faithful to the Republic of Lithuania and to administer
justice in accordance with the law only. Paragraph 3 of Article
133 of the Constitution provides that while taking office, the
State Controller takes an oath, and that the oath is
established by law.
Thus, according to the Constitution, members of the
Seimas, members of the Government, justices of the
Constitutional Court, judges of other courts, the State
Controller, must take an oath before entering office. The
aforementioned persons may not begin to hold office before they
take the oath.
Taking account of the fact that, under the Constitution,
the legal status of the said state officials differs, the texts
of their oaths established in the Constitution are also not the
same, however, the texts of oaths of all the indicated state
officials reflect the same constitutional values in various
aspects; on the other hand, the texts of oaths stress namely
the values which are linked by the Nation with the respective
office and with the activity of the persons holding
corresponding office.
It needs to be noted that members of the Seimas, members
of the Government, judges, all of them, under the Constitution,
must swear to be faithful to the Republic of Lithuania
(although, as it was already mentioned, due to a different
legal status of the state officials indicated in the
Constitution, the texts of the oaths are not the same). It also
needs to be noted that the text of the oath of the State
Controller is not established in the Constitution (under
Paragraph 3 of Article 133 of the Constitution, the oath of the
State Controller is established by law), however, the
constitutional status of the State Controller implies the
requirement for the State Controller to take an oath to be
faithful to the Republic of Lithuania; the requirement to be
faithful to the Republic of Lithuania is established in the
oath of the State Controller, the text of which is defined in
Paragraph 1 of Article 30 of the Republic of Lithuania Law on
State Control.
Faithfulness to the State of Lithuania is inseparable from
faithfulness to the Constitution, too; upon the breach of oath
to be faithful to the Republic of Lithuania, the Constitution
is grossly violated as well.
It needs to be mentioned that the oath of members of the
Seimas, members of the Government, justices of the
Constitutional Court, judges of other courts, the State
Controller, as well as the oath of the President of the
Republic, is not a mere formal or symbolic act. After account
is taken of the fact that the institute of the oath of the
aforementioned state officials, the content of the oath are
established in the Constitution, then the oath taken by the
said persons bears the constitutional meaning and gives rise to
constitutional legal effects: a person may not begin to hold
office before he takes the oath; refusal to take the oath,
taking the oath with certain reservations or changing the text
of the oath, refusal to sign the text of the oath, under the
Constitution, means that the person may not begin to hold
office: in case a person elected a member of the Seimas does
not take the oath, the Seimas must adopt a resolution on the
loss of the mandate of a member of the Seimas (Paragraph 3 of
Article 59 of the Constitution); if a person, appointed a
justice of the Constitutional Court, a justice of the Supreme
Court, a judge of the Court of Appeal, a judge of another
court, does not take the oath, another person should be
appointed to the said office; if a person, appointed a member
of the Government, does not take the oath, another person
should be appointed to the said office; if a person, appointed
the State Controller, does not take the oath, another person
must be appointed the State Controller.
The act of oath of the aforesaid state officials is
constitutionally legally significant also for the reason that
the aforementioned persons, when taking the oath, publicly and
solemnly accept an obligation to act in accordance with the
requirements of the oath; their constitutional obligation to
act in accordance with the requirements of the oath and to
breach the oath under no circumstances emerges from the moment
of taking the oath. Under Article 74 of the Constitution,
breach of oath is one of the bases, under which not only the
President of the Republic, but the President and justices of
the Constitutional, the President and justices of the Supreme
Court, the President and judges of the Court of Appeal may be
removed from office, or a mandate of a member of the Seimas may
be revoked according to the procedure for impeachment
proceedings.
It was mentioned that the Constitution consolidates such
an organisation of institutions executing state power and such
a procedure of their formation, where all the institutions
which execute state power, the Seimas, the Government, the
President of the Republic, the Judiciary, as well as other
state institutions, are formed only from the citizens who
without reservations obey the Constitution adopted by the
Nation and who, while in office, unconditionally follow the
Constitution, law, the interests of the Nation and the State of
Lithuania. It was also held in this Ruling of the
Constitutional Court that the content of the constitutional
sanction (the constitutional liability) applied in accordance
with the procedure for impeachment proceedings, comprises also
the removal of the person who has grossly violated the
Constitution and breached the oath from office, and the
subsequent prohibition, in the future, for such a person from
holding such an office defined in the Constitution, which the
person may begin to hold only upon taking the oath established
in the Constitution. The Constitution also consolidates the
legal regulation, where a person, whose mandate of a member of
the Seimas has been revoked according to the procedure for
impeachment proceedings for gross violation of the Constitution
and breach of oath, or where a person has been removed from the
office of the President of the Republic, the President and a
justice of the Constitutional Court, the President and a
justice of the Supreme Court, the President and a judge of the
Court of Appeal, for gross violation of the Constitution and
breach of oath, under the Constitution, may never be elected
President of the Republic, a member of the Seimas, may never
hold the office of a justice of the Constitutional Court, a
justice of the Supreme Court, a judge of the Court of Appeal, a
judge at other court, a member of the Government, the State
Controller, i.e. may not hold the office established in the
Constitution, the beginning of holding of which, according to
the Constitution, is linked with taking the oath set forth in
the Constitution. A different interpretation of the provisions
of the Constitution would make the institute of constitutional
impeachment for gross violation of the Constitution and breach
of oath legally meaningless, pointless, it would be
incompatible with the essence and purpose of the constitutional
liability for breach of oath and gross violation of the
Constitution, with the essence and purpose of the oath
established in the Constitution as a constitutional value, as
well as with the requirement, which emerges from the overall
constitutional legal regulation, that all the institutions
executing state power and other state institutions be comprised
only from the citizens who without reservations obey the
Constitution adopted by the Nation, and who, while in office,
unconditionally follow the Constitution, law, the interests of
the Nation and the State of Lithuania. A different
interpretation of the provisions of the Constitution would be
inconsistent with both the constitutional principle of a state
under the rule of law, and the constitutional imperative of an
open, just, and harmonious civil society
12. Thus, according to the Constitution, a person, who is
a citizen of the Republic of Lithuania by birth, who has
resided in Lithuania for not less than the past three years;
who has reached the age of not less than 40 prior to the
election day; who is not bound by an oath or a pledge to a
foreign state, may be elected President of the Republic. Under
the Constitution, a person may not be elected President of the
Republic, if he has acted the President of the Republic for two
consecutive times (two consecutive terms). Under the
Constitution, a person, who has not fulfilled punishment
imposed on him by a court judgement, as well as a person
recognised as incapable by a court, may not be elected
President of the Republic as well. Under the Constitution, a
person, who has been removed from office, or whose mandate of a
member of the Seimas has been revoked according to the
procedure for impeachment proceedings for breach of oath, gross
violation of the Constitution or the crime by which the
Constitution was grossly violated and the oath was breached,
may never be elected President of the Republic. Under the
Constitution, a judge of any court or a person holding the
office defined in Article 141 of the Constitution may not be
elected President of the Republic.
Under the Constitution, a person, who meets the
established constitutional requirements (if no obstacles
defined in the Constitution exist) for being registered as a
candidate to the President of the Republic, must additionally
collect the signatures of not less than 20,000 voters.
It needs to be stressed that the Constitution does not
provide for any other requirements (conditions), which are to
be met by a person so that he would be eligible for being
elected President of the Republic. Under the Constitution, the
laws and other legal acts may not establish any such
requirements (conditions) which would distort or deny the
requirements (conditions) established in the Constitution,
which are to be met by a person so that he would be eligible
for being elected President of the Republic.
IV
On the compliance of Paragraph 2 (wording of 4 May 2004)
of Article 2 of the Republic of Lithuania Law on Presidential
Elections with Articles 1 and 2, Paragraph 1 of Article 3,
Article 4, Paragraphs 1 and 2 of Article 5, Paragraph 1 of
Article 6, Paragraph 1 of Article 29, Paragraph 1 of Article
33, Paragraph 2 of Article 34, Article 67, Paragraph 1 of
Article 78, Article 79, and Paragraph 1 of Article 109 of the
Constitution, and the constitutional principle of a state under
the rule of law.
1. Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections reads: "A
person, who has been removed from office or his mandate of a
member of the Seimas has been revoked by the Seimas in
accordance with the procedure for impeachment proceedings, may
not be elected President of the Republic if less than 5 years
have elapsed since his removal from office or the revocation of
his mandate of a member of the Seimas".
2. Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections has
consolidated the following provisions:
1) a prohibition for a person to be elected President of
the Republic is established, if such a person has been removed
from office or his mandate of a member of the Seimas has been
revoked by the Seimas in accordance with the procedure for
impeachment proceedings;
2) a period of validity of the aforementioned prohibition
is established: a person, who has been removed from office or
his mandate of a member of the Seimas has been revoked by the
Seimas in accordance with the procedure for impeachment
proceedings, may not be elected President of the Republic if
less than 5 years have elapsed since his removal from office or
the revocation of his mandate of a member of the Seimas in
accordance with the procedure for impeachment proceedings; in
other words, a permission is established to elect such a person
President of the Republic if 5 years have elapsed since his
removal from office or the revocation of his mandate of a
member of the Seimas in accordance with the procedure for
impeachment proceedings;
3) it is established that the said prohibition applies to
all the persons, who are specified in Article 74 of the
Constitution and who have been removed by the Seimas from
office, or whose mandate of a member of the Seimas has been
revoked by it, in case of existence of any basis established in
Article 74 of the Constitution: gross violation of the
Constitution, breach of oath or disclosure of commission of a
crime.
3. The petitioner bases his doubt concerning the
compliance of Paragraph 2 (wording of 4 May 2004) of Article 2
of the Republic of Lithuania Law on Presidential Elections with
the Constitution on the fact, that, in his opinion, the
requirements to a person, who may be elected President of the
Republic, are established in Article 56, Paragraph 1 of Article
78, and Paragraph 1 of Article 79 of the Constitution, that,
according to him, no other restrictions on the exercising the
passive electoral right are established in the Constitution,
that the Constitution, in the opinion of the petitioner,
consolidates a final list of requirements, which are to be met
by a person, who may be elected President of the Republic, and
that no other requirements may be established in laws.
4. It was held in this Ruling of the Constitutional Court
that, under the Constitution, a person, who grossly violated
the Constitution, breached the oath, or committed the crime by
which the Constitution was also grossly violated and the oath
was breached, and for the said reason who was removed, in
accordance with the procedure for impeachment proceedings, from
the office of the President of the Republic, the President and
a justice of the Constitutional Court, the President and a
justice of the Supreme Court, the President and a judge of the
Court of Appeal, or whose mandate of a member of the Seimas has
been revoked, may, under the Constitution, never be elected
President of the Republic, a member of the Seimas, may never
hold the office of a justice of the Constitutional Court, a
justice of the Supreme Court, a judge of the Court of Appeal, a
judge of another court, a member of the Government, the State
Controller, i.e. he may never hold the offices established in
the Constitution, the beginning of holding of which, according
to the Constitution, are linked with taking of the oath
provided for in the Constitution.
5. The provision of Paragraph 2 (wording of 4 May 2004) of
Article 2 of the Republic of Lithuania Law on Presidential
Elections that a person may be elected President of the
Republic if 5 years have elapsed since his removal from office
or the revocation of his mandate of a member of the Seimas in
accordance with the procedure for impeachment proceedings, is
not consistent with the requirement of the Constitution that
such a person may never be elected President of the Republic.
The provision of Paragraph 2 (wording of 4 May 2004) of Article
2 of the Republic of Lithuania Law on Presidential Elections
that a person may be elected President of the Republic if 5
years have elapsed since his removal from office or the
revocation of his mandate of a member of the Seimas in
accordance with the procedure for impeachment proceedings
violates: Paragraph 1 of Article 82 of the Constitution, in
which the essence and the purpose of the oath of the President
of the Republic is consolidated; Paragraphs 2 and 3 of Article
59 of the Constitution, in which consolidate the essence and
the purpose of the oath of a member of the Seimas are
consolidated; Article 5 of the Law of the Republic of Lithuania
"On the Procedure of Entry into Effect of the Constitution of
the Republic of Lithuania", in which the oath of a member of
the Seimas is established; Paragraph 2 of Article 104 of the
Constitution, in which the oath of a justice of the
Constitutional Court is consolidated; Paragraph 6 of Article
112 of the Constitution, in which the oath of a person
appointed as a judge is consolidated; Article 74 of the
Constitution, which provides that for gross violation of the
Constitution, or breach of oath the Seimas has a right to
remove from office the President of the Republic, the President
and justices of the Constitutional Court, the President and
justices of the Supreme Court, the President and judges of the
Court of Appeal, or to revoke the mandate of a member of the
Seimas; and Paragraph 2 of Article 34 of the Constitution,
which provides that the right to be elected is established by
the Constitution of the Republic of Lithuania and by the
election laws. The aforementioned provision of Paragraph 2
(wording of 4 May 2004) of Article 2 of the Republic of
Lithuania Law on Presidential Elections also violates the
constitutional principle of a state under the rule of law.
6. In Paragraph 2 (wording of 4 May 2004) of Article 2 of
the Republic of Lithuania Law on Presidential Elections the
provision is consolidated according to which a person may not
be elected President of the Republic if less than 5 years have
elapsed since his removal from office or the revocation of his
mandate of a member of the Seimas in accordance with the
procedure for impeachment proceedings. The formula "procedure
for impeachment proceedings" comprises also all the bases
established in Article 74 of the Constitution, in presence of
which a person may be removed from office, or his mandate of a
member of the Seimas may be revoked. It was mentioned that in
Article 74 of the Constitution the following bases for removal
of a person from office and revocation of his mandate of a
member of the Seimas in accordance with the procedure for
impeachment proceedings are established: gross violation of the
Constitution, breach of oath, disclosure of a committed crime.
Thus, under Paragraph 2 (wording of 4 May 2004) of Article 2 of
the Republic of Lithuania Law on Presidential Elections, a
person, who has been removed from office, or his mandate of a
member of the Seimas has been revoked in accordance with the
procedure for impeachment proceedings not only for gross
violation of the Constitution, breach of oath, but for
commission of any crime, including a crime by which the
Constitution was not grossly violated and the oath was not
breached, may not be elected President of the Republic if less
than 5 years have elapsed.
The Constitution does not establish that a person, who has
been removed from office, or his mandate of a member of the
Seimas has been revoked in accordance with the procedure for
impeachment proceedings for commission of a crime by which the
Constitution was not grossly violated and the oath was not
breached, may not be elected President of the Republic.
Therefore, Paragraph 2 (wording of 4 May 2004) of Article
2 of the Republic of Lithuania Law on Presidential Elections,
according to which a person, who has been removed by the Seimas
from office, or whose mandate of a member of the Seimas has
been revoked in accordance with the procedure for impeachment
proceedings for commission of a crime by which the Constitution
was not grossly violated and the oath was not breached, may not
be elected President of the Republic, has established a
requirement (condition) to a person, who may be elected
President of the Republic, which is different than the one
entrenched in the Constitution.
Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections to the
extent that it provides that a person, who has been removed by
the Seimas from office, or his mandate of a member of the
Seimas has been revoked in accordance with the procedure for
impeachment proceedings for commission of a crime by which the
Constitution was not grossly violated and the oath was not
breached, may not be elected President of the Republic, is
inconsistent with: Article 74 of the Constitution, which
provides for the right of the Seimas in accordance with the
procedure for impeachment proceedings, for gross violation of
the Constitution and breach of oath, to remove the President of
the Republic, the President and justices of the Constitutional
Court, the President and justices of the Supreme Court, the
President and judges of the Court of Appeal from office, or to
revoke the mandate of a member of the Seimas; Paragraph 2 of
Article 56 of the Constitution, according to which a person who
has not fulfilled punishment imposed on him by a court
judgement may not be elected a member of the Seimas; Paragraph
1 of Article 78 of the Constitution, according to which a
citizen of the Republic of Lithuania, who inter alia may be
elected a member of the Seimas, may be elected President of the
Republic; and Paragraph 2 of Article 34 of the Constitution,
which provides that the right to be elected is established by
the Constitution and by the election laws.
7. When assessing the compliance of Paragraph 2 (wording
of 4 May 2004) of Article 2 of the Republic of Lithuania Law on
Presidential Elections with the Constitution, one is to note
that this paragraph providing that a person, who has been
removed from office or his mandate of the Seimas member has
been revoked by the Seimas in accordance with the procedure for
impeachment proceedings, may not be elected the President of
the Republic, except the provision that "if less than 5 years
have elapsed since his removal from office or the revocation of
his mandate of the Seimas member", and the provision that a
person, who has been removed from office or his mandate of the
Seimas member has been revoked by the Seimas in accordance with
the procedure for impeachment proceedings for the commission of
a crime by which the Constitution of the Republic of Lithuania
has not been grossly violated or the oath has not been
breached, is in line with the restriction entrenched in the
Constitution that a person, who has been removed from office of
the President of the Republic, the President and a justice of
the Constitutional Court, the President and a justice of the
Supreme Court, the President and a judge of the Court of
Appeal, or whose mandate of a member of the Seimas has been
revoked in accordance with the procedure for impeachment
proceedings for breach of oath, gross violation of the
Constitution, or the crime by which the Constitution has also
been grossly violated, may never be elected President of the
Republic.
8. Taking account of the aforementioned arguments, one is
to draw a conclusion that:
1) Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections, which
provides that a person, who has been removed from office or his
mandate of the Seimas member has been revoked by the Seimas in
accordance with the procedure for impeachment proceedings, may
not be elected the President of the Republic, except the
provision that "if less than 5 years have elapsed since his
removal from office or the revocation of his mandate of the
Seimas member", and the provision that a person, who has been
removed from office or his mandate of the Seimas member has
been revoked by the Seimas in accordance with the procedure for
impeachment proceedings for the commission of a crime by which
the Constitution has not been grossly violated or the oath has
not been breached, is not in conflict with the Constitution;
2) the provision of Paragraph 2 (wording of 4 May 2004) of
Article 2 of the Republic of Lithuania Law on Presidential
Elections, which reads "if less than 5 years have elapsed since
his removal from office or the revocation of his mandate of the
Seimas member" is in conflict with Paragraph 2 of Article 34,
Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of
Article 82, Paragraph 2 of Article 104, and Paragraph 6 of
Article 112 of the Constitution, Article 5 of the Law "On the
Procedure of Entry into Effect of the Constitution of the
Republic of Lithuania", as well as the constitutional principle
of a state under the rule of law;
3) Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections to the
extent that it provides that a person, who has been removed
from office or his mandate of the Seimas member has been
revoked by the Seimas in accordance with the procedure for
impeachment proceedings for the commission of a crime by which
the Constitution has not been grossly violated or the oath has
not been breached may not be elected President of the Republic,
is in conflict with Paragraph 2 of Article 34, Paragraph 2 of
Article 56, Article 74, and Paragraph 1 of Article 78 of the
Constitution.
9. Having held the aforementioned, in this case the
Constitutional Court will not investigate as to whether
Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections is not in
conflict with the other articles (paragraphs thereof) of the
Constitution, which are specified in the resolving part of the
petition of the petitioner, i.e. Articles 1 and 2, Paragraph 1
of Article 3, Article 4, Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 6, Paragraph 1 of Article 29, Paragraph
1 of Article 33, Article 67, Article 79, and Paragraph 1 of
Article 109 of the Constitution.
V
On the compliance of Article 11 (wording of 4 May 2004) of
the Republic of Lithuania Law on Presidential Elections with
the constitutional principle of a state under the rule of law.
1. Article 11 (wording of 4 May 2004) of the Republic of
Lithuania Law on Presidential Elections is set forth as
follows:
"Article 11. Purposes for Supplementing of Article 2 of
this Law
Pursuant to the principles of an open, just, and
harmonious civil society and state under the rule of law
enshrined in the Preamble to the Constitution of the Republic
of Lithuania, as well as Articles 6, 34 and 74 of the
Constitution, the Seimas of the Republic of Lithuania adopts
this Law."
2. The petitioner doubts as to whether Article 11 (wording
of 4 May 2004) of the Republic of Lithuania Law on Presidential
Elections is not in conflict with the constitutional principle
of a state under the rule of law.
3. It was mentioned that by the Republic of Lithuania Law
on Supplement of the Law on Presidential Elections with Article
11 and Supplement to Article 2 Thereof Article 2 of the
Republic of Lithuania Law on Presidential Elections was
supplemented with new Paragraph 2, which provides that a
person, who has been removed from office or his mandate of the
Seimas member has been revoked by the Seimas in accordance with
the procedure for impeachment proceedings, may not be elected
the President of the Republic if less than 5 years have elapsed
since his removal from office or the revocation of his mandate
of the Seimas member.
4. Article 11 (wording of 4 May 2004) of the Republic of
Lithuania Law on Presidential Elections specifies the purposes,
as well as the articles of the Constitution, according to which
the Seimas supplemented Article 2 (wording of 19 September
1996) of the Republic of Lithuania Law on Presidential
Elections with said new Paragraph 2.
5. It was held in this Ruling of the Constitutional Court
that:
1) Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections, which
establishes that a person, who has been removed from office or
his mandate of the Seimas member has been revoked by the Seimas
in accordance with the procedure for impeachment proceedings,
may not be elected the President of the Republic, except the
provision that "if less than 5 years have elapsed since his
removal from office or the revocation of his mandate of the
Seimas member", and the provision that a person, who has been
removed from office or his mandate of the Seimas member has
been revoked by the Seimas in accordance with the procedure for
impeachment proceedings for the commission of a crime by which
the Constitution has not been grossly violated or the oath has
not been breached, is not in conflict with the Constitution;
2) the provision of Paragraph 2 (wording of 4 May 2004) of
Article 2 of the Republic of Lithuania Law on Presidential
Elections, which reads "if less than 5 years have elapsed since
his removal from office or the revocation of his mandate of the
Seimas member" is in conflict with Paragraph 2 of Article 34,
Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of
Article 82, Paragraph 2 of Article 104, and Paragraph 6 of
Article 112 of the Constitution, Article 5 of the Law "On the
Procedure of Entry into Effect of the Constitution of the
Republic of Lithuania", as well as the constitutional principle
of a state under the rule of law;
3) Paragraph 2 (wording of 4 May 2004) of Article 2 of the
Republic of Lithuania Law on Presidential Elections to the
extent that it provides that a person, who has been removed
from office or his mandate of the Seimas member has been
revoked by the Seimas in accordance with the procedure for
impeachment proceedings for the commission of a crime by which
the Constitution has not been grossly violated or the oath has
not been breached may not be elected President of the Republic
of Lithuania, is in conflict with Paragraph 2 of Article 34,
Paragraph 2 of Article 56, Article 74, and Paragraph 1 of
Article 78 of the Constitution.
Article 11 (wording of 4 May 2004) of the Republic of
Lithuania Law on Presidential Elections is inseparable from
Paragraph 2 (wording of 4 may 2004) of Article 2 of this law:
Article 11 (wording of 4 May 2004) of the said law does not
establish any legal regulation, which itself could cause any
rights or duties of the subjects to legal relations specified
in Paragraph 2 (wording of 4 may 2004) of Article 2 of this
law, or cause any legal effects in their respect.
Having taken account of the aforementioned, the
Constitutional Court will not investigate as to whether Article
11 (wording of 4 May 2004) of the Republic of Lithuania Law on
Presidential Elections is not in conflict with the
constitutional principle of a state under the rule of law as
specified by the petitioner.
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 (wording of 4 May 2004)
of Article 2 of the Republic of Lithuania Law on Presidential
Elections, which establishes that a person, who has been
removed from office or his mandate of the Seimas member has
been revoked by the Seimas in accordance with the procedure for
impeachment proceedings, may not be elected the President of
the Republic, except the provision that "if less than 5 years
have elapsed since his removal from office or the revocation of
his mandate of the Seimas member", and the provision that a
person, who has been removed from office or his mandate of the
Seimas member has been revoked by the Seimas in accordance with
the procedure for impeachment proceedings for the commission of
a crime by which the Constitution of the Republic of Lithuania
has not been grossly violated or the oath has not been
breached, is not in conflict with the Constitution of the
Republic of Lithuania.
2. To recognise that the provision of Paragraph 2 (wording
of 4 May 2004) of Article 2 of the Republic of Lithuania Law on
Presidential Elections, which reads "if less than 5 years have
elapsed since his removal from office or the revocation of his
mandate of the Seimas member" is in conflict with Paragraph 2
of Article 34, Paragraphs 2 and 3 of Article 59, Article 74,
Paragraph 1 of Article 82, Paragraph 2 of Article 104, and
Paragraph 6 of Article 112 of the Constitution of the Republic
of Lithuania, Article 5 of the Law "On the Procedure of the
Entry into Effect of the Constitution of the Republic of
Lithuania", as well as the constitutional principle of a state
under the rule of law.
3. To recognise that Paragraph 2 (wording of 4 May 2004)
of Article 2 of the Republic of Lithuania Law on Presidential
Elections to the extent that it provides that a person, who has
been removed from office or his mandate of the Seimas member
has been revoked by the Seimas in accordance with the procedure
for impeachment proceedings for the commission of a crime by
which the Constitution of the Republic of Lithuania has not
been grossly violated or the oath has not been breached may not
be elected President of the Republic, is in conflict with
Paragraph 2 of Article 34, Paragraph 2 of Article 56, Article
74, and Paragraph 1 of Article 78 of the Constitution of the
Republic of Lithuania.
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