Lietuviškai
Case No. 04/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE RULING OF THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
"ON THE COMPLIANCE OF PARAGRAPH 4 OF ARTICLE 15 OF
THE STATUTE OF THE SEIMAS OF THE REPUBLIC OF
LITHUANIA (WORDING OF 22 DECEMBER 1998) WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA" OF 1
JULY 2004
10 February 2005
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 member of the Seimas Algimantas Salamakinas, who was
the representative of the petitioner in constitutional justice
case No. 04/04, and Jurgita Meškienė, a senior consultant to
the Legal Department of the Office of the Seimas, who was the
representative of the Seimas, the party concerned, in
constitutional justice case No. 04/04,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 7 February 2005, in the
public hearing considered the request of a member of the Seimas
of the Republic of Lithuania Algimantas Salamakinas to
construe:
- the notion "continuity of the activity of the Seimas"
used in the Ruling of the Constitutional Court of the Republic
of Lithuania "On the compliance of Paragraph 4 of Article 15 of
the Statute of the Seimas of the Republic of Lithuania (wording
of 22 December 1998) with the Constitution of the Republic of
Lithuania" of 1 July 2004 (Official Gazette Valstybės žinios,
2004, No. 105-3894; hereinafter also referred to as the Ruling)
and whether the continuity of the activity of the Seimas would
not be broken if all the members of the Seimas were granted
holidays during the period between the sessions of the Seimas;
- whether the statement "the notion 'work' used in the
formula 'work in business, commercial and other private
establishments or enterprises' of Paragraph 1 of Article 60 of
the Constitution also comprises any other private profit-making
activity, as well as any profit-making activity engaged in
without establishing an enterprise, establishment or
organisation" of Item 13.6 of Chapter II in the reasoning part
of the Ruling means that any member of the Seimas can be
neither a farmer nor a partner of a farmer;
- whether the statements "The constitutional legal status
of a member of the Seimas, a representative of the Nation,
comprising inter alia the limitations established in Paragraph
1 of Article 60 of the Constitution, determines particularities
of exercising of the person's rights consolidated in Article 46
and 48 of the Constitution, which are enjoyed by him as any
other human being. It needs to be noted that the provisions of
Paragraph 1 of Article 60 of the Constitution, with regard to
the purpose of the legal regulation established in this
paragraph, mean also that the member of the Seimas who is a
founder, owner, co-owner or shareholder of a private
enterprise, establishment or organisation, may not take an
office, perform work, perform service, fulfil other functions,
perform other tasks, hold a so-called office of honour, etc.
(including participation in collegial management, control and
other bodies) in the said establishment, enterprise or
organisation, or represent it. This is incompatible with the
constitutional legal status of a member of the Seimas: having
acquired all the rights of the representatives of the Nation,
the member of the Seimas decides that he will be a
representative of the Nation and will not be engaged in
business, commerce or other profit-making private activity" of
Item 13.7.1 of Chapter II in the reasoning part of the Ruling,
the statements "The legal regulation established in Paragraph 1
of Article 60 of the Constitution may not be construed in the
way denying the essence of the consolidated in Article 23 of
the Constitution right of ownership, enjoyed by a member of the
Seimas as well. Thus, the provisions of Paragraph 1 of Article
60 of the Constitution, consolidating the incompatibility of
the duties of a member of the Seimas with inter alia engaging
in business, commerce or other profit-making private activity,
may not be construed as the ones meaning the prohibition for a
member of the Seimas from using his property, getting income
from it, possessing the property owned by him, etc., as well as
from concluding contracts related hereto also. However, such an
activity of a member of the Seimas, when he uses his property,
gets income from it, possesses the property by him, etc., as
well as concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making activity" of Item
13.7.2 of the same section, the statements "When establishing
by law the constitutionally necessary legal regulation, the
legislator must also establish the ways of providing legal
conditions of preventing the origination of incompatibility of
the duties of a member of the Seimas with engaging in business,
commerce or other profit-making private activity. Such legal
regulation would also create pre-conditions for avoiding the
use of the mandate of a member of the Seimas in the interests
of private benefit of certain persons, i.e. particular
interests, rather than the interests of the Nation and the
State of Lithuania, and confrontation of the private interests
of a member of the Seimas with the interests of the Nation and
the State of Lithuania, and confrontation of the private
interests of a member of the Seimas with the interests of the
Nation and the State of Lithuania, i.e. public interests; this
would strengthen the Nation's trust in members of the Seimas as
representatives of the Nation and the Seimas as the
representation of the Nation. Such control is an important
condition of implementation of the provision of Item 7 of
Article 63 of the Constitution, under which the powers of a
member of the Seimas become terminated if he takes up, or does
not resign from, employment which is incompatible with the
duties of a member of the Seimas" and "Attention should be
drawn to the fact that various methods of ensuring the
incompatibility of the duties of a member of the parliament and
engagement in business control and control over it are
established in foreign democratic states under the rule of law,
for example trust of possession of property of a member of the
parliament of other compulsory transfer to other persons,
anonymous possession of such property, control over agreements
concluded between the enterprises, the founder, owner, co-owner
or a shareholder of which is a member of the parliament, and
establishments, enterprises, and organisations of the public
sector, etc." of Item 13.7.3 of the same section mean that: (1)
a member of the Seimas can be the founder, owner, co-owner or
participator (sharer, shareholder, member of the cooperative
etc.) of a legal entity, as well as the owner of a farmer's
farm; (2) the member of the Seimas, who is the founder, owner,
co-owner or participant of a legal entity, can have all the
rights (material and non-material) of a participant of the
legal entity, but he cannot participate or vote in the meetings
of the aforementioned legal entity himself; (3) the member of
the Seimas, who is the founder, owner, co-owner or participant
of a legal entity, can exercise his rights as those of a
participant of the legal entity only through another person,
and the owner's rights of the member of the Seimas-the owner of
a farmer's farm-must be exercised following the same procedure;
(4) entering into a contract with another person on handling
property of a member of the Seimas (handling of property, trust
of property, transfer, assignment of the voting right in the
meeting of the participants of a legal entity, etc.),
inspection of its implementation and amendment are not
considered to be activities of the member of the Seimas, which
are incompatible with the status of a member of the Seimas; (5)
restrictions for making contracts, related to handling of the
property owned by the right of ownership, which, in order to
avoid the conflict of public and private interests, must be
established not only for a member of the Seimas, but for his
close relatives and members of the family as well (interpreting
these notions in accordance with Paragraph 5 of Article 2 of
the Law on the Adjustment of Public and Private Interests in
the State Service of the Republic of Lithuania), also for the
legal entities, participants of which are members of the Seimas
and their close relatives and family members, if the shares
(divvies) possessed by the member of the Seimas and his close
relatives and family members allow to make the decisive
influence upon the control of the legal entity;
- whether the statements "The constitutional right to
freely form unions is linked with an opportunity to take
various offices in such associations; the said opportunity is a
derivative from the constitutional right to freely form unions.
The procedure of taking the said offices in unions is
established not by the state, but by acts regulating the
internal order (articles of association, statutes, etc.) of the
union itself (which, according to the Constitution, is
autonomous in regard to public power, as it has been already
mentioned)" and "Under the Constitution, no legal regulation
artificially or unreasonably limiting the freedom of forming
unions and their activity may be established as this would
violate the constitutional value-the right of union (freedom of
association). Therefore, under the Constitution the legislator
may not establish any such legal regulation which would limit
the right of a member of the Seimas to be a member of the union
specified in the Constitution and to take office in it, as in
regard to the said person this would violate the constitutional
value-the right of union, or freedom of association" of Item
13.7.1 of Chapter II in the reasoning part of the Ruling mean
that a member of the Seimas can take the leading office in a
trade union, political party, association, a member of which he
is and represent it;
- whether the statements of Items 12, 13.1, 13.5, 13.6,
13.9 of Chapter II in reasoning part of the Ruling on the
incompatibility of the duties of a member of the Seimas with
other duties and work mean that a member of the Seimas, who
does not work and does not perform activities, because he was
given leave for the period of performing the duties of a member
of the Seimas following the procedure established in Articles
183, 184 or 185 of the Labour Code or his activity (powers) was
suspended following the procedure established by the law
(Article 221 of Law on Notary Office of the Republic of
Lithuania, Article 11 of Law on Bailiffs of the Republic of
Lithuania, Article 14 of Law on Audit of the Republic of
Lithuania) violates the principle of the incompatibility of the
duties a member of the Seimas with other duties and work.
The Constitutional Court
has established:
I
1. On 1 July 2004, in constitutional justice case No.
04/04 the Constitutional Court passed the Ruling "On the
compliance of Paragraph 4 of Article 15 of the Statute of the
Seimas of the Republic of Lithuania (wording of 22 December
1998) with the Constitution of the Republic of Lithuania".
2. The member of the Seimas A. Salamakinas, who was the
representative of a group of members of the Seimas, the
petitioner, in constitutional justice case No. 04/04, by the
petition of 13 January 2005 requests the Constitutional Court
to construe:
- the notion "continuity of the activity of the Seimas"
used in the Ruling and whether the continuity of the activity
of the Seimas would not be broken if all the members of the
Seimas were granted holidays during the period between the
sessions of the Seimas;
- whether the statement "the notion 'work' used in the
formula 'work in business, commercial and other private
establishments or enterprises' of Paragraph 1 of Article 60 of
the Constitution also comprises any other private profit-making
activity, as well as any profit-making activity engaged in
without establishing an enterprise, establishment or
organisation" of Item 13.6 of Chapter II in the reasoning part
of the Ruling means that a member of the Seimas can be neither
a farmer nor a partner of a farmer;
- if the statements "The constitutional legal status of a
member of the Seimas, a representative of the Nation,
comprising inter alia the limitations established in Paragraph
1 of Article 60 of the Constitution, determines particularities
of exercising of the person's rights consolidated in Article 46
and 48 of the Constitution, which are enjoyed by him as any
other human being. It needs to be noted that the member of the
Seimas who is a founder, owner, co-owner or shareholder of a
private enterprise, establishment or organisation, may not take
an office, perform work, perform service, fulfil other
functions, perform other tasks, hold a so-called office of
honour, etc. (including participation in collegial management,
control and other bodies) in the said establishment, enterprise
or organisation, or represent it. This is incompatible with the
constitutional legal status of a member of the Seimas: having
acquired all the rights of the representative of the Nation and
will not be engaged in business, commerce or other
profit-making private activity" of Item 13.7.1 of Chapter II in
the reasoning part of the Ruling, the statements "The legal
regulation established in Paragraph 1 of Article 60 of the
Constitution may not be construed in the way denying the
essence of the consolidated in Article 23 of the Constitution
right to ownership, enjoyed by a member of a Seimas as well.
Thus, the provisions of Paragraph 1 of Article 60 of the
Constitution, consolidating the incompatibility of the duties
of a member of the Seimas with inter alia engaging in business,
commerce or other profit-making private activity, may not be
construed as the ones meaning the prohibition for a member of
the Seimas from using his property, getting income from it,
possessing the property owned by him, etc., as well as from
concluding contracts related hereto also. However, such an
activity of a member of the Seimas, when he uses his property,
gets income from it, possesses the property owned by him, etc.,
as well as concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making private activity"
of Item 13.7.2 of the same section, the statements "When
establishing by law the constitutionally necessary legal
regulation, the legislator must also establish the ways of
providing legal conditions of preventing the origination of
incompatibility of the duties of a member of the Seimas with
engaging in business, commerce or other profit-making private
activity. Such legal regulation would also create
pre-conditions for avoiding the use of the mandate of a member
of the Seimas in the interests of private benefit of certain
persons, i.e. particular interests, rather than the interests
of the Nation and the State of Lithuania, and confrontation of
the private interests of a member of the Seimas with the
interests of the Nation and the State of Lithuania, i.e. public
interests; this would strengthen the Nation's trust in members
of the Seimas as representatives of the Nation and the Seimas
as the representation of the Nation. Such control is an
important condition of implementation of the provision of Item
7 of Article 63 of the Constitution, under which the powers of
a member of the Seimas become terminated if he takes up or does
not resign from, employment which is incompatible with the
duties of a member of the Seimas" and "Attention should be
drawn to the fact that various methods of ensuring the
incompatibility of the duties of a member of the parliament and
engagement in business and control over it are established in
foreign democratic states under the rule of law, for example,
trust of possession of property of a member of the parliament
or other compulsory transfer to other persons, anonymous
possession of such property, control over agreements concluded
between enterprises, the founder, owner, co-owner or a
shareholder of which is a member of the parliament, and
establishments, enterprises, and organisations of the public
sector etc." of Item 13.7.2 of the same section mean that: (1)
a member can be the founder, owner, co-owner or participant
(sharer, shareholder, member of the cooperative etc.) of a
legal entity, as well as the owner of a farmer's farm; (2) the
member of the Seimas, who is the founder, owner, co-owner or
participant of a legal entity, can have all the rights
(material and non-material) of a participant of the legal
entity, but he cannot participate or vote in the meetings of
the aforementioned legal entity himself; (3) the member of the
Seimas who is the founder, owner, co-owner or participant of a
legal entity, can exercise his rights as those of a participant
of the legal entity only through another person, and the
owner's rights of the member of the Seimas-the owner of a
farmer's farm-must be exercised following the same procedure;
(4) entering into a contract with another person on handling
property of a member of the Seimas (handling of property, trust
of property, transfer, assignment of the voting right in the
meeting of the participants of a legal entity, etc.),
inspection of its implementation and amendment are not
considered to be activities of the member of the Seimas, which
are incompatible with the status of a member of the Seimas; (5)
restrictions for making contracts, related to handling of the
property owned by the right of ownership, which, in order to
avoid the conflict of public and private interests, must be
established not only for a member of the Seimas, but for his
close relatives and members of the family as well (interpreting
these notions in accordance with Paragraph 5 of Article 2 of
the Law on the Adjustment of Public and Private Interests in
the State Service of the Republic of Lithuania), also for the
legal entities, participants of which are members of the Seimas
and their close relatives and family members, if the shares
(divvies) possessed by the member of the Seimas and his close
relatives and family members allow to make the decisive
influence upon the control of the legal entity;
- whether the statements "The constitutional right to
freely form unions is linked with an opportunity to take
various offices in such associations; the said opportunity is a
derivative from the constitutional right to freely form unions.
The procedure of taking the said offices in unions is
established no by the state, but by acts regulating the
internal order (articles of association, statutes, etc.) of the
union itself (which, according to the Constitution, is
autonomous in regard to public power, as it has been already
mentioned)" and "Under the Constitution, no legal regulation
artificially or unreasonably limiting the freedom of forming
unions and their activity may be established as this would
violate the constitutional value-the right of union (freedom of
association). Therefore, under the Constitution the legislator
may not establish any such legal regulation which would limit
the right of a member of the Seimas to be a member of the union
specified in the Constitution and to take office in it, as in
regard to the said person this would violate the constitutional
value-the right of union, or freedom of association" of Item
13.8.4 of Chapter II in the reasoning part of the Ruling mean
that a member of the Seimas can take the leading office in a
trade union, political party, association, a member of which he
is and represent it;
- whether the statements of Items 12, 13.1, 13.5, 13.6,
13.9 of Chapter II in reasoning part of the Ruling on the
incompatibility of the duties of a member of the Seimas with
other duties and work mean that a member of the Seimas, who
does not work and does not perform activities, because he was
given leave for the period of performing the duties of a member
of the Seimas following the procedure established in Articles
183, 184 or 185 of the Labour Code or his activity (powers) was
suspended following the procedure established by the law
(Article 221 of Law on Notary Office of the Republic of
Lithuania, Article 11 of Law on Bailiffs of the Republic of
Lithuania, Article 14 of Law on Audit of the Republic of
Lithuania) violates the principle of the incompatibility of the
duties a member of the Seimas with other duties and work.
II
1. At the Constitutional Court hearing the representative
of a group of members of the Seimas in constitutional justice
case No. 04/04 A. Salamakinas explained some of the reasons of
his request to construe certain statements of the Ruling.
2. J. Meškienė, representative of the party concerned, the
Seimas, in constitutional justice case No. 04/04 spoke at the
Constitutional Court hearing.
The Constitutional Court
holds that:
I
1. A ruling of the Constitutional Court is integral. Its
resolution part is based upon the arguments of the part of
reasoning. While construing its ruling, the Constitutional
Court is bound both by the content of the part of resolution
and that of reasoning of its ruling. The decision adopted
concerning construction of a Constitutional Court ruling is
inseparable from the Constitutional Court ruling
(Constitutional Court decisions of 12 January 2000, of 11
February 2004, of 13 February 2004).
2. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe
its ruling without changing its content.
II
1. The member of the Seimas A. Salamakinas requests to
construe the notion "continuity of the activity of the Seimas"
used in the Ruling and whether the continuity of the activity
of the Seimas would not be broken if all the members of the
Seimas were granted holidays during the period between the
sessions of the Seimas.
2. The member of the Seimas A. Salamakinas does not
indicate in which sections, items or paragraphs of the Ruling
the notion he requests to construe is used.
The continuity of the activity of the Seimas and
inseparably related to it continuity of work of a member of the
Seimas in various aspects, using the words "continuity" and/or
"continuous" are defined in Item 4 (all three paragraphs
thereof), Paragraph 2 of Item 5, Paragraph 3 of Item 6,
Paragraphs 1 and 3 of Item 10, Paragraphs 1 and 3 of Item 11.8,
Paragraphs 1 and 4 of Item 12, Paragraph 4 of Item 13.7.1 of
Chapter II in the reasoning part of the Ruling:
1) "The Constitution establishes the organisation of state
power where each institution of state power performs its
functions incessantly. Under the Constitution, no legal
situation may occur where any institution exercising state
power fails to function.
<...> the Seimas must always ensure that its powers
established in the Constitution are performed incessantly and
that in any situation the representative of the Nation Should
be able to constructively, efficiently and incessantly
implement the supreme sovereign power of the Nation.
The continuity of the activity of the Seimas, as the
incessantly acting representation of the nation, is ensured by
inter alia the provisions of Article 59 of the Constitution,
which provide that the term of Office of members of the Seimas
begins to be counted from the day that the newly-elected Seimas
convenes for the first sitting and that the period of powers of
the previously elected members of the Seimas expires at the
beginning of the sitting" (Item 4 of Chapter II in the
reasoning part of the Ruling);
2) "The continuity of the activity of the Seimas implies
the continuity of the activity of a member of the Seimas as a
representative of the Nation. Under the Constitution, legal
acts should establish such a structure and procedure of work of
the Seimas, as well as the legal status of a member of the
Seimas, which would provide for an opportunity for each member
of the Seimas to execute his constitutional duty to constantly
participate at the work of the Seimas, the representation of
the nation, to incessantly perform his constitutional powers,
as a representative of the Nation" (Paragraph 2 of Item 5 of
Chapter II in the reasoning part of the Ruling);
3) "The constitutional provisions that a period of powers
of a member of the Seimas begins to be counted from the day
that the newly-elected Seimas convenes for the first sitting
and that the period of powers of the previously elected members
of the Seimas expires at the beginning of the sitting, which
are construed in the context of the principle of continuity of
the Seimas' activity as entrenched in the Constitution, implies
that the newly-elected Seimas as the full-fledged
representation of the Nation must begin functioning namely from
the beginning of this sitting. Since a member of the Seimas,
under the Constitution, gains 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 elected
members of the Seimas, under the Constitution, must take an
oath at the first sitting of the newly-elected Seimas.
According to the Constitution the legislator must establish a
procedure of taking an oath of a member of the Seimas, so that
all the members of the Seimas take oath namely at the first
sitting of the newly-elected Seimas. An exemption could be made
to the elected members of the Seimas who not able to arrive at
the first sitting of the newly-elected Seimas only due to
especially important and justifiable reasons (for example,
illness); under the Constitution, such an elected member of the
Seimas must take an oath at the next earliest sitting of the
Seimas after the end of existence of the especially important
and justifiable reason due to which the elected member of the
Seimas was not able to take the oath at the first sitting of
the newly-elected Seimas" (Paragraph 3 of Item 6 of Chapter II
in the reasoning part of the Ruling);
4) "In order that a member of the Seimas would be able to
incessantly perform his duties, as a representative of the
Nation, the Constitution itself establishes not only certain
rights, but the duties of a member of the Seimas, too. Some
duties of a member of the Seimas are formulated in the
Constitution expressis verbis. The other duties of a member of
the Seimas are not expressis verbis formulated in the
Constitution, but they are entrenched implicitly-they are
derived from the constitutional legal status of a member of the
Seimas as a representative of the Nation. Still, some other
duties of a member of the Seimas are established not in the
Constitution, but in the legal acts of lower power-laws and the
Statute of the Seimas" (Paragraph 1 of Item 10 of Chapter II in
the reasoning part of the Ruling);
5) "The other constitutional duties of a member of the
Seimas are formulated in the Constitution as a certain
limitations applied in regard to a member of the
Seimas-incompatibility of the office of a member of the Seimas
with other offices or a job, except the cases established in
the Constitution, and the prohibition for a member of the
Seimas from receiving other remuneration, save the exceptions
established in the Constitution (Article 60 of the
Constitution); these limitations in regard to members of the
Seimas are established in the Constitution in order to ensure
the free mandate of a member of the Seimas as a representative
of the Nation, and the continuity of his work at the Seimas and
engaging in other parliamentary activities" (Paragraph 3 of
Item 10 of Chapter II in the reasoning part of the Ruling);
6) "<...> the activity of the Seimas as the representation
of the Nation and of members of the Seimas as representatives
of the Nation is incessant. Paragraph 1 of Article 64 of the
Constitution provides that every year the Seimas convenes for
two regular sessions-one in spring and one in autumn; the
spring session begins on March 10th and ends on June 30th, and
the autumn session begins on September 10th and ends on
December 23rd; the Seimas may decide to prolong a session.
Paragraph 2 of Article 64 of the Constitution provides for
extraordinary sessions: extraordinary sessions are convened by
the President of the Seimas upon the motion of not less than
one-third of all the members of the Seimas, and in cases
provided for in the Constitution, by the President of the
Republic" (Paragraph 1 of Item 11.8 of Chapter II in the
reasoning part of the Ruling);
7) "<...> sessions of the Seimas are not single form of
activity of the Seimas, and participation at sessions of the
Seimas is not a single form of the work of a Seimas member at
the Seimas or his parliamentary activity. <...> according to
the Constitution the activity of a member of the Seimas as a
representatives of the Nation is incessant; each member of the
Seimas should have an opportunity to exercise his
constitutional duty to constantly participate at the work of
the Seimas, the representation of the Nation, and incessantly
perform his constitutional powers as the ones of a
representative of the Nation. Therefore, according to the
Constitution, members of the Seimas perform their duties as
representatives of the Nation beyond sessions of the Seimas as
well. The entrenched in the Constitution principle of
continuity of activity of the Seimas as the representation of
the Nation implies that a period of time between sessions of
the Seimas is not vacation of members of the Seimas, nor their
other time for rest. It needs to be noted that the Republic of
Lithuania Law on Work Conditions of a Member of the Seimas
provides that duration of work hours of a member of the Seimas
is not limited (Article 3). Besides, no other legal acts
provide for any vacation of a member of the Seimas at all. In
this context it needs to be stressed that from Paragraph 1 of
Article 49 of the Constitution, which provides that each
working human being has the right to rest and leisure, as well
as annual paid holidays, and from Paragraph 4 of Article 60 of
the Constitution, which provides that the duties, rights and
guarantees of the activities of a member of the Seimas are
established by law, stems the duty of the legislator to
establish duration of annual paid holidays of a member of the
Seimas and other conditions by law. It should also be noted
that establishment of holidays of a member of the Seimas by law
would also ensure the absence of preconditions to
constitutionally unreasonably treat the time between sessions
of the Seimas as the time equal to holidays or other time for
rest of a member of the Seimas" (Paragraph 3 of Item 11.8 of
Chapter II in the reasoning part of the Ruling);
8) "<...> certain constitutional duties of a member of the
Seimas are formulated in the Constitution as certain
limitations applied in regard to a member of the
Seimas-incompatibility of the duties of a member of the Seimas
with other duties or a job, save the exceptions established in
the Constitution, and a prohibition for a member of the Seimas
from receiving other remuneration, except the cases established
in the Constitution; these limitations are meant to ensure the
free mandate of a member of the Seimas as a representative of
the Nation, and the continuity of his work at the Seimas and
other parliamentary activities. When evaluating the entirety of
limitations entrenched in the Constitution in regard to a
member of the Seimas, it is to be held that in this respect the
constitutional legal status of a member of the Seimas, a
representative of the Nation, is different in essence from the
constitutional legal status of other citizens and it determines
constitutional legal status of other citizens and it determines
particularities of implementation of particular rights of a
person entrenched in the Constitution, which a member of the
Seimas enjoys as a human being and citizen" (Paragraph 1 of
Item 12 of Chapter II in the reasoning part of the Ruling);
9) "The purpose of the legal regulation established in
Paragraph 1 of Article 60 of the Constitution is to ensure the
free mandate of a member of the Seimas as a representative of
the Nation, and continuity of his work at the Seimas and other
parliamentary activities, to guarantee that a member of the
Seimas shall act in the interests of the Nation and the State
of Lithuania rather than their personal interests or the
interests of a group, or the interests of political parties or
political organisations, public or other organisations, and
other persons, which nominated or supported the candidate to
the office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas, that a member of the Seimas will not use his status
and the free mandate for the private benefit or the benefit of
his close relatives or other persons, that each member of the
Seimas will have an opportunity to exercise his constitutional
duty to constantly participate at the work of the Seimas, the
representation of the Nation, to incessantly perform his
constitutional powers, as a representative of the nation. This
purpose would never be reached or conditions preventing the
accomplishment of this purpose would be created if a member of
the Seimas had an opportunity to hold another office to be
engaged in other work, with the exception of the offices
expressis verbis specified in the Constitution, as well as the
offices which may be held upon the implication of the
constitution; this purpose would never be reached or conditions
preventing the accomplishment of this purpose would also
created if a member of the Seimas received remuneration other
than the specified in the Constitution" (Paragraph 4 of Item 12
of Chapter II in the reasoning part of the Ruling);
10) "It was mentioned that under the Constitution a member
of the Seimas, a representative of the Nation, must properly
fulfil his constitutional duty to represent the whole Nation,
and to act only in the interests of the nation and the State of
Lithuania, and that the activity of a member of the Seimas, a
representative of the Nation, is incessant. The member of the
Seimas must use his mandate of a representative of the Nation
only in the interests of the Nation and the State of Lithuania
rather than a private benefit of his own or his close relatives
or other persons. From the established in Paragraph 1 of
Article 60 of the Constitution incompatibility of the duties of
a member of the Seimas with work at business, commercial or
other private establishments or enterprises, as well as work at
establishments or enterprises the founder, owner, co-owner or
shareholder of which is which is the member of the Seimas,
originates a prohibition to engage, in any form, in business,
commerce or other profit-making private activity. When deciding
whether a certain activity of the member of the Seimas is
engagement in business, commerce, etc., every time account
should be taken of the content of the activity and all the
other circumstances" (Paragraph 4 of Item 13.7.1 of Chapter II
in the reasoning part of the Ruling).
3. The Ruling discloses various aspects of the continuity
of the activity of the Seimas. In construing the provision that
of the activity of the Seimas is continuous, it should be
stressed that according to the Constitution there can be no
legal situations where the Seimas would not function as the
representation of the Nation and institution of the legislative
power and that the activity of each term of office of the
Seimas lasts from the day when the newly-elected Seimas
convenes for the first sitting until the day when the next
newly-elected (i.e. of the next term of office) Seimas convenes
for the first sitting. Legally, each Seimas of new term of
office proceeds with the activity of the Seimas of earlier
terms of office, there is continuity between the Seimas of
various terms of office. The Seimas, as the representation of
the Nation and the institution of the legislative power,
functions constantly.
It was held in the Ruling that the continuity of the
activity of the Seimas implies the continuity of the activity
of a member of the Seimas, as a representative of the Nation.
Participation in the work of the Seimas is a constitutional
duty and at the same time a right of a member of the Seimas;
this inter alia means that no such legal regulation can be
established which, on the one hand, might allow a member of the
Seimas not to participate in the work of the Seimas without
especially important justifiable reasons, and, on the other
hand, would not allow or would aggravate in other ways the
opportunities for him to participate in the work of the Seimas.
The constitutional duty of a member of the Seimas to
participate in the work of the Seimas comprises inter alia his
duty to participate in the work of the structural subdivisions
of the Seimas, a member of which he is, and to perform other
duties of a member of the Seimas established in the
Constitution, the laws and the Statute of the Seimas.
The Constitution treats a member of the Seimas as a
professional politician, i.e. as a representative of the
Nation, whose work at the Seimas is his professional activity
(Paragraph 3 of Item 5 of Chapter II in the reasoning part of
the Ruling). A member of the Seimas-a professional politician
and state official-who has his mandate as a representative of
the Nation during his whole term of office (incumbency), i.e.
he can perform all duties of a representative of the Nation
since the moment when he acquires all the rights of a
representative of the Nation after he takes an oath in the
Seimas to the Republic of Lithuania according to the
Constitution, until the moment when his duties as those of a
member of the Seimas terminate due to the reasons established
in the Constitution.
4. It is clear from the request of the member of the
Seimas A. Salamakinas and his explanations in the hearing of
the Constitutional Court, that he asks to construe the notion
"continuity of the activity of the Seimas" in the aspect
whether this notion does not mean that the continuity of the
activity of a member of the Seimas would be violated, if annual
paid holidays were granted to all members of the Seimas during
the period between the sessions of the Seimas. Thus, the
principle of continuity of the activity of the Seimas, in the
aspect indicated by the member of the Seimas A. Salamakinas,
should be construed along with the provision of the Ruling that
the legislator has the constitutional duty to establish the
duration, other conditions of the annual paid holidays of a
member of the Seimas by the law (Paragraph 3 of Item 11.8 of
Chapter II in the reasoning part of the Ruling).
The provision of the Ruling on the continuity of the
activity of the Seimas and the provision of the Ruling that the
legislator has a constitutional duty to establish the duration
and other conditions of annual paid holidays of a member of the
Seimas by the law should be construed while taking into
consideration, on the one hand, the nature, the constitutional
mission of the Seimas as the representation of the Nation
established in the Constitution (and the laws and the Statute
of the Seimas grounded upon it), the established peculiarities
of the functioning and work organisation of the Seimas and the
legal constitutional status of a member of the Seimas, as a
representative of the Nation and professional politician, which
differs essentially from the legal status of other citizens and
state officials as well as all other working people, and, on
the other hand, the necessity not only to ensure the
constitutional right of a member of the Seimas to rest and
leisure time as well as annual paid holidays, which is enjoyed
by a member of the Seimas as by any other working human being,
but this right should also be ensured in a way which would
comply with the imperative of an open, just and harmonious
civil society and the constitutional principle of equal rights
of all people, which does not allow to grant privileges to any
groups of persons or discriminate them inter alia due to their
social status.
5. It should be mentioned that the beginning and the end
of two regular sessions of the Seimas (the duration of these
sessions) are established in the Constitution: every year, the
Seimas shall convene for two regular sessions-one in spring and
one in autumn. The spring session shall begin on March 10th and
shall end on June 30th; the autumn session shall begin on
September 10th and shall end on December 23rd (Paragraph 1 of
Article 64 of Constitution). The Constitution also establishes
that, in case of need, the Seimas may decide to prolong the
session (Paragraph 1 of Article 64 of Constitution), also a
possibility for convening extraordinary sessions is established
(Paragraph 2 of Article 64, Item 19 of Article 84, Paragraph 2
of Article 142, Paragraph 2 of Article 144 of the
Constitution).
The Ruling states that according to the parliamentary
tradition of democratic states, a parliamentary session
comprises sittings of the parliament and sittings of the
parliamentary committees and other structural sub-units held in
between them (Paragraph 2 of Item 11.8 of Chapter II in the
reasoning part of the Ruling). The Ruling also states that
sessions of the Seimas are not a single form of activity of the
Seimas, and participation at sessions of the Seimas is not a
single form of the work of a Seimas member at the Seimas or his
parliamentary activity (Paragraph 3 of Item 11.8 of Chapter II
in the reasoning part of the Ruling). The sitting of the
committees, other structural sub-units, in which members of the
Seimas are bound to participate, are convened not only during
the Seimas sessions, but also when sessions of the Seimas are
not taking place; between the sessions of the Seimas, its
committees and other structural sub-units, individual members
of the Seimas, their groups perform other activities
established in the Constitution, the Statute of the Seimas and
the laws as well. Thus, as it was stated in the Ruling,
according to the Constitution, the time between the sessions of
the Seimas is not the holiday of members of the Seimas or other
form of their rest; the treatment of the time between the
sessions of the Seimas as that equalled to the holiday of the
members of the Seimas or their other rest or leisure time would
not be constitutionally grounded.
6. While construing the provision that the activity of the
Seimas is continuous in the aspect indicated by the member of
the Seimas A. Salamakinas along with the provision that the
legislator has a constitutional duty to establish the duration
and other conditions of annual paid holidays of a member of the
Seimas by the law, it should be stated that the continuity of
the activity of the Seimas as the representation of the Nation
and the institution of the legislative power and continuity of
the activity of a member of the Seimas as a representative of
the Nation and a professional politician in no case implies
that a member of the Seimas should not or cannot make use of
the constitutional right he possesses as any other working
person to the rest and leisure time as well as to annual paid
holidays. Due to the fact that the Constitution treats a member
of the Seimas as a professional politician as well as due to
the fact that according to the Constitution the work of a
member of the Seimas is a permanent job for which a member of
the Seimas receives remuneration and the proper performance of
which must be ensured by respective social guarantees and
special guarantees of the parliamentary work established in the
Constitution and the laws, the constitutional right of a member
of the Seimas to rest and leisure time, as well as to annual
paid holidays, cannot be denied, nor can the exercise of this
right be limited without sufficient grounding.
It should be especially emphasized that according to the
Constitution neither during the rest period, nor the leisure
time, nor during annual paid holidays a member of the Seimas
loses his status of a representative of the Nation: as at work
during the Seimas sessions, the sittings of the Seimas
committees, of other structural sub-units, which take place not
during the session of the Seimas, during the rest period, the
leisure time or during annual paid holidays he retains his
status as a representative of the Nation while the Seimas, even
though the representatives of the Nation are on holiday, does
not cease being the representation of the Nation and the
institution of the legislative power.
7. The provision of the Ruling that the legislator has a
duty to establish the duration and other conditions of the paid
annual holidays of a member of the Seimas by the law inter alia
means that the holidays of members of the Seimas must be
established not by any legal acts issued by the Seimas, but
namely by the law, also that such a law should determine the
duration of the annual paid holidays of a member of the Seimas,
the amount of the remuneration for the holidays, and other
essential conditions of the holidays
The aforementioned provision does not mean that the law
should determine a fixed time, the same each year for annual
paid holidays of the members of the Seimas (concrete dates of
their beginning and end). The Seimas, taking into consideration
its agenda, the considered issues, other circumstances, can
establish the time for annual paid holidays of members of the
Seimas each year separately by a substatutory act-a resolution
of the Seimas; this resolution must be adopted following the
law establishing inter alia the duration of the annual leave of
the members of the Seimas.
8. Establishing the duration of the paid annual holidays
of the members of the Seimas (by the law), as well as
determining the beginning and the end of annual paid holidays
of the members of the Seimas each year (by a resolution of the
Seimas), attention should also be paid to the constitutional
imperative that the participation in the work of the Seimas is
a constitutional duty and at the same time a right of a member
of the Seimas, also to the fact that the constitutional duty of
a member of the Seimas to participate in the work of the Seimas
inter alia comprises his duty to participate in the work of the
structural sub-units of the Seimas a member of which this
member of the Seimas is and to discharge all the other powers
of a member of the Seimas established in the Constitution, the
laws and the Statute of the Seimas. The sittings of the Seimas
take place during the regular and extraordinary sessions. Thus,
when the session of the Seimas is taking place, a member of the
Seimas cannot be on annual paid holidays, save the exceptions
described below concerning the time of annual paid holidays of
the President of the Seimas and the Deputy President
(Presidents) of the Seimas.
While establishing the duration of annual paid holidays of
the members of the Seimas (by the law), as well as their
beginning and end (by a resolution of the Seimas), it is
necessary to take into account that, as mentioned above, the
sittings of the committees of the Seimas and other structural
sub-units, in which members of the Seimas must participate, are
convened not only during the sessions of the Seimas, but also
at the time when there are no sessions of the Seimas, as well
as after that, between the sessions of the Seimas the Seimas,
its committees and other structural sub-units, individual
members of the Seimas and their groups also perform other
activities established in the Constitution, the Statute of the
Seimas and the laws. Thus, a member of the Seimas cannot be on
the paid annual holidays at the time when sittings of the
committees of the Seimas and other structural sub-units, in
which the members of the Seimas must participate, take place,
and when the activities of the Seimas, its committees and other
structural sub-units established in the Constitution, the
Statute of the Seimas and the laws are carried out, even though
the session of the Seimas does not take place, save the
exceptions described below concerning annual paid holidays of
the President of the Seimas and the Deputy President
(Presidents) of the Seimas.
The constitutional imperatives of the continuity of the
activity of the Seimas and the continuity of the activity of a
member of the Seimas and the necessity to ensure the right of a
member of the Seimas to annual paid holidays established in
Paragraph 1 of Article 49 of the Constitution, when one
construes these constitutional requirements in the context of
one another, imply that the legislator, while regulating the
relations linked with annual paid holidays of a member of the
Seimas, can and must determine the time when the sittings of
the Seimas as well as the sittings of the committees of the
Seimas and other structural sub-units do not take place, and
when no other activity of the Seimas, the committees of the
Seimas or other structural sub-divisions established in the
Constitution, the Statute of the Seimas and in the laws is
performed. The annual paid holidays of members of the Seimas
can be determined at that particular time by a resolution of
the Seimas. According to the Constitution ,annual paid holidays
of a member of the Seimas cannot be established at any other
time, save the further described exceptions established in the
Constitution on the annual paid holidays time of the President
of the Seimas and the deputy (deputies) President of the
Seimas.
The nature, constitutional mission of the Seimas as the
representation of the Nation and the institution of the
legislative power, the peculiarities of functioning and
organisation of the work of the Seimas and the legal
constitutional status of a member of the Seimas as a
representative of the Nation and professional politician
determines that all members of the Seimas take annual paid
holidays at the same time.
At the same time it should be noted that, as mentioned,
certain exceptions are established in the Constitution
concerning the time of the annual paid holidays of the
President of the Seimas and the Deputy President (Presidents)
of the Seimas. The time of annual paid holidays of the state
officials mentioned in the Constitution-the President of the
Seimas and the Deputy President (Presidents) of the Seimas-must
be established by taking into consideration that these
officials must be able to immediately, if need occurs, perform
the duties determined to them in the Constitution, the laws and
the Statute of the Seimas. The possibility to establish a
differentiated legal regulation of the time for annual paid
holidays of the President of the Seimas and the Deputy
President (Presidents) of the Seimas (if compared with the
legal regulation of the time for annual paid holidays of other
members of the Seimas) is the only exception to the regulation
of the aforementioned relations established in the
Constitution. Nevertheless, while establishing a different time
for the annual paid holidays to the President of the Seimas and
the Deputy President (Presidents) of the Seimas it is necessary
to ensure that these officials would be able to perform their
duties in a way that would not interrupt the work of the
Seimas, inter alia the fact that the President of the Seimas
might be able to perform the legal act (the Statute of the
Seimas or other legislative acts of the Seimas) promulgation
duties established in Paragraph 2 of Article 70 of the
Constitution.
9. The Seimas enjoys discretion to establish the duration
of annual paid holidays of a member of the Seimas. At the same
time it should be stressed that establishing this duration the
Seimas is bound by the imperative of an open, just and
harmonious civil society established in the Constitution, the
constitutional principle of equal rights of all persons, which
does not allow to grant benefits to any of the groups of people
or discriminate them inter alia due to their social status.
Thus, the annual paid holidays of a member of the Seimas cannot
be shorter than the minimal duration established in the laws,
but they also cannot be unjustifiably long; all the differences
in the annual paid holidays of a member of the Seimas, if
compared with the duration of the holidays of other working
people, no matter what they are, must be constitutionally
grounded.
10. It was mentioned that the Constitution establishes an
opportunity to convene extraordinary sessions of the Seimas,
also, in case of need, the Seimas can decide to prolong the
regular session. If a decision is made to prolong the regular
session or an extraordinary session is convened, the members of
the Seimas must convene to it, even though they are at annual
paid holidays at that time. In such cases, the Seimas, ensuring
the right of a member of the Seimas to annual paid holidays,
established in Paragraph 1 of the Article 49 of the
Constitution, can and should determine other time, when the
sittings of the Seimas as well as the sittings of the
committees of the Seimas, other structural sub-units do not
take place, the activity of the Seimas, its committees, other
structural sub-units established in the Constitution, the
Statute of the Seimas and the laws is not performed, so that
the members of the Seimas could make use of their
constitutional right to annual paid holidays instead of the
time that was used by the members of the Seimas for the
prolonged regular session of the Seimas or for the
extraordinary session of the Seimas.
11. It should be noted that according to the Constitution
such a legal situation where, after the holidays of members of
the Seimas are over, the committees, other structural sub-units
of the Seimas do not function and the time remaining till the
beginning of the next session of the Seimas is treated as that
equal to the holiday of members of the Seimas, or their other
leisure time, is impermissible.
12. It goes without saying, situations may occur where,
due to especially important personal and other justifiable
reasons for a certain period of time a member of the Seimas
cannot participate in the sittings of the Seimas, the
committees of the Seimas, other structural sub-units, a member
of which he is, and/or for a certain period of time he cannot
perform other duties of a member of the Seimas due to very
important personal and other justifiable reasons. This implies
the necessity to establish a procedure according to which in
the said cases such a member of the Seimas should apply to the
institution indicated in the law (the Statute of the Seimas)
for a permission not to participate in the sittings of the
Seimas, the committees of the Seimas, other structural
sub-units, a member of which he is, for the said period of
time, and not to perform other duties of a member of the Seimas
for the said period of time; if the reasons indicated by a
member of the Seimas are especially important and justifiable,
the aforementioned permission is granted; if such a permission
is not granted, the absence of the member of the Seimas from
the sittings of the Seimas, the committees of the Seimas, other
structural sub-units, a member of which this member of the
Seimas is, or non-performance of other duties of a member of
the Seimas would be unjustifiable.
Situations are also possible where a member of the Seimas
is not capable of notifying the institution indicated in the
law (the Statute of the Seimas) about his absence from the
sitting before the commencement of the sitting. The legislator
has a duty to establish under what procedure the institution
indicated in the law (the Statute of the Seimas) would be able
to decide if the reasons of the absence of the member of the
Seimas from a sitting were especially important and
justifiable.
If a member of the Seimas has not participated in the
sitting of the Seimas, the committee, other structural sub-unit
of the Seimas, a member of which he is-regardless of whether or
not he notified about his absence following the established
procedure in advance, whether or not he received a permission
of a respective institution indicated in the law (the Statute
of the Seimas)-the said time, according to the Constitution, is
considered neither the time when the member of the Seimas
performed the work of a member of the Seimas indicated in
Paragraph 3 of Article 60 of the Constitution, remunerable from
the state budget, nor the time when the member of the Seimas
made use of the right established in Paragraph 1 of Article 49
of the Constitution to annual paid holidays.
13. It should be noted that discharging of the powers of a
member of the Seimas is not limited to his participation in the
sittings of the Seimas, those of its committees and other
structural sub-units. In this context it should be mentioned
that the discharging of powers of a member of the Seimas, thus
also the work of a member of the Seimas determined in Paragraph
3 of Article 60 of the Constitution, is the same activity of a
member of the Seimas, when he performs the assignments and
other tasks of the Seimas, its committees and other structural
sub-units, when he represents groups of members of the Seimas
in cases established by the law, etc. The work of a member of
the Seimas, his activity in the Seimas comprise the performance
of the duties established in Paragraph 1 Article 60 of the
Constitution (the office of the President of the Seimas, Deputy
President of the Seimas; the offices of a member of the Seimas,
which are taken by a member of the Seimas pursuant to the
Statute of the Seimas in the governing body of the Seimas or
when leading a structural sub-unit of the Seimas, as well as
other offices, which may be taken in the Seimas only by a
member of the Seimas; the offices of a member of the Seimas in
inter-parliamentary and other international institutions, which
may only be taken by member of the Seimas (Paragraph 4 of Item
13.1 of Chapter II in the reasoning part of the Ruling)).
Such an activity of a member of the Seimas is the work of
a member of the Seimas indicated in Paragraph 3 of Article 60
of the Constitution, remunerated from the State Budget.
14. It should also be mentioned that according to
Paragraph 2 of Article 60 of the Constitution, a member of the
Seimas can be appointed Prime Minister or Minister. That
implies a possibility to regulate their labour relations in the
Seimas in a differentiated way; the legislator has a certain
discretion in this area.
15. In summary it should be held that after establishing
the duration and other conditions of annual paid holidays of a
member of the Seimas, the right of a member of the Seimas to
annual paid holidays established in Paragraph 1 of the Article
49 of the Constitution would be ensured. On the other hand, as
it was held in the Ruling, the establishment of the holiday for
a member of the Seimas by the law would also ensure that there
would be no preconditions for constitutionally ungrounded
treatment of the period between the sessions of the Seimas as
the time equal to the holidays of members of the Seimas or
their other kind of rest.
16. Having taken account of the aforementioned arguments,
it should be held that the notion "continuity of the activity
of the Seimas" used in the Ruling does not mean that the
continuity of work of the Seimas would be violated, if the paid
annual holidays established in Paragraph 1 of the Article 49 of
the Constitution was granted to all the members of the Seimas
during the period between the sessions of the Seimas, save the
exceptions, which arise from the Constitution, concerning the
time for annual paid holidays of the President of the Seimas
and Deputy President (Presidents) of the Seimas.
III
1. The member of the Seimas A. Salamakinas requests to
construe whether the statement "the notion 'work' used in the
formula 'work in business, commercial and other private
establishments and enterprises' of Paragraph 1 of Article 60 of
the Constitution also comprises any other private profit-making
activity, as well as any profit-making activity engaged in
without establishing an enterprise, establishment or
organisation" in Paragraph 2 of Item 13.6 of Chapter II in the
reasoning part of the Ruling means that a member of the Seimas
can be neither a farmer, nor a partner of a farmer.
2. The prohibition established in Paragraph 1 of Article
60 of the Constitution for a member of the Seimas from taking
any other office in state establishments or organisations, as
well as performing work in business, commerce and other private
establishments or enterprises, and the prohibition established
in Paragraph 3 of the same article for a member of the Seimas
from receiving any other remuneration, except for the
remuneration of a member of the Seimas and remuneration for
creative activities, for revealing the content of which inter
alia the statement of Paragraph 2 of Item 13.6 of Chapter II in
the reasoning part of the Ruling is dedicated, the construction
of which is requested by the member of the Seimas A.
Salamakinas, does not mean that a member of the Seimas cannot
use, handle, etc. the property belonging to him by the right of
ownership, as well as enter contracts related thereto.
Nevertheless, the activity of a member of the Seimas, when he
uses his property, receives income from it, handles the
property belonging to him by the right of ownership, etc., also
enters contracts related thereto, according to the Constitution
cannot turn into business, commerce or other profit-making
activity (Paragraph 4 of Item 13.7.2 of Chapter II in the
reasoning part of the Ruling).
At the same time it should be noted that the handling of
the property belonging by the right of ownership and other
activities related thereto can bear peculiarities which are
determined by various factors-the nature of this property, the
circumstances of its acquisition, the fact whether other
persons have any rights to the property, etc. It is these
various factors that may determine whether the use, handling,
etc. of the property belonging to the person by the right of
ownership, receiving income from this activity, as well as
entering contracts related thereto in some cases turn into a
business, commerce, or other profit-making activity, and in
other cases it does not. Within the context of the issue under
consideration it should also be noted that the activity that is
described as farming is usually linked with the use, handling,
etc. of land, forests, water bodies as well as objects of
living nature as objects of property, therefore, this activity
has specific peculiarities.
3. It was mentioned that the member of the Seimas A.
Salamakinas requests to construe whether the statement "the
notion 'work' used in the formula 'work in business, commercial
and other private establishments and enterprises' of Paragraph
1 of Article 60 of the Constitution also comprises any other
private profit-making activity, as well as any profit-making
activity engaged in without establishing an enterprise,
establishment or organisation" means that a member of the
Seimas can be neither a farmer nor a partner of a farmer. Thus,
the member of the Seimas A. Salamakinas requests to construe if
being a farmer or a partner of a farmer is compatible with the
legal constitutional status of a member of the Seimas.
4. While construing the statement indicated by the member
of the Seimas A. Salamakinas in the aspect indicated by him, it
should be noted that neither the notion "farmer", nor the
notion "partner of a farmer" is used in the Ruling; it should
also be noted that the words "farmer" and "partner of a farmer"
are not used in the text of the Constitution, either. The said
notions are used and their content is revealed in the Republic
of Lithuania Law on the Farmer's Farm, in other laws and other
legal acts. Therefore, the legal content of these notions
depends on the way it is defined not in the Constitution, but
in legal acts of a lower power. If legal regulation is changed,
the legal content of these notions can also be changed.
It should be stressed that It is impossible to construe
constitutional norms and principles on the basis of the legal
acts adopted by the legislator and other entities of
law-making, as then the supremacy of the Constitution in the
legal system would be denied (Constitutional Court rulings of
12 July 2001 and 1 July 2004).
It was mentioned that while construing its ruling, the
Constitutional Court is bound both by the content of the part
of resolution and that of reasoning of its ruling and also that
the Constitutional Court must construe its ruling without
changing its content.
The legal content of the notions "farmer" and "partner of
a farmer" defined in the laws and other legal acts was not the
subject of investigation in constitutional justice case No.
04/04.
Considering the fact that the Constitutional Court must
construe its ruling without changing its content, the fact that
neither the notion "farmer", nor the notion "partner of a
farmer" were used in the Ruling and the fact that the legal
content of these notions defined in the laws and other legal
acts was not the subject of investigation in constitutional
justice case No. 04/04, their content cannot be construed in
this Decision of the Constitutional Court, either.
5. It should also be noted that while evaluating if a
certain activity of a member of the Seimas, related to the use,
handling, etc. of the property belonging to the member of the
Seimas by the right of ownership, receiving income from it, as
well as entering contracts related thereto, is compatible or
incompatible with the legal constitutional status of a member
of the Seimas, from the viewpoint of the Constitution it is not
only important how the respective activity is defined in the
laws or other legal acts, but, first of all, it is important
whether the activity actually performed by a member of the
Seimas is not a job prohibited to a member of the Seimas by the
Constitution, whether it does not turn into a business,
commerce or other activity, which is prohibited by the
Constitution.
Taking into consideration the fact that the activity
defined as farming can be distinguished by certain
peculiarities, in itself only receiving profit from this
activity does not mean that this activity has turned into a
business, commerce or other activity, which is prohibited by
the Constitution. According to the Constitution, the legislator
has the duty to establish such legal regulation, that in each
case, when it is doubted whether certain activity of a member
of the Seimas, described as farming (regardless of the way it
is defined in the laws or other legal acts), has not turned
into a business, commerce or other activity prohibited for a
member of the Seimas by the Constitution, it would be possible
to ascertain all the factual circumstances, evaluate the said
activity and determine whether the aforementioned activity is
incompatible with the legal constitutional status of a member
of the Seimas.
6. Having taken account of the aforementioned arguments it
should be stated that the statement "the notion 'work' used in
the formula 'work in business, commercial and other private
establishments and enterprises" of Paragraph 1 of Article 60 of
the Constitution also comprises any other private profit-making
activity, as well as any profit-making activity engaged in
without establishing an enterprise, establishment or
organisation" of Paragraph 2 of Item 13.6 of Chapter II in the
reasoning part of the Ruling does not mean that any activity,
which can be described as farming, is by itself incompatible
with the constitutional legal status of a member of the Seimas
(if it has not turned into a business, commerce or any other
activity prohibited to a member of the Seimas by the
Constitution).
IV
1. The member of the Seimas A. Salamakinas requests to
construe whether the statements "The constitutional legal
status of a member of the Seimas, a representative of the
Nation, comprising inter alia the limitations established in
Paragraph 1 of Article 60 of the Constitution, determines
particularities of exercising of the person's rights
consolidated in Article 46 and 48 of the Constitution, which
are enjoyed by him as any other human being. It needs to be
noted that the provisions of Paragraph 1 of Article 60 of the
Constitution, with regard to the purpose of the legal
regulation established in this paragraph, mean also that the
member of the Seimas who is a founder, owner, co-owner or
shareholder of a private enterprise, establishment or
organisation, may not take an office, perform work, perform
service, fulfil other functions, perform other tasks, hold a
so-called office of honour, etc. (including participation in
collegial management, control and other bodies) in the said
establishment, enterprise or organisation, or represent it.
This is incompatible with the constitutional legal status of a
member of the Seimas: having acquired all the rights of the
representatives of the Nation, the member of the Seimas decides
that he will be a representative of the Nation and will not be
engaged in business, commerce or other profit-making private
activity" of Paragraph 3 of Item 13.7.1 of Chapter II in the
reasoning part of the Ruling, the statements "The legal
regulation established in Paragraph 1 of Article 60 of the
Constitution may not be construed in the way denying the
essence of the consolidated in Article 23 of the Constitution
right of ownership, enjoyed by a member of the Seimas as well.
Thus, the provisions of Paragraph 1 of Article 60 of the
Constitution, consolidating the incompatibility of the duties
of a member of the Seimas with inter alia engaging in business,
commerce or other profit-making private activity, may not be
construed as the ones meaning the prohibition for a member of
the Seimas from using his property, getting income from it,
possessing the property owned by him, etc., as well as from
concluding contracts related hereto also. However, such an
activity of a member of the Seimas, when he uses his property,
gets income from it, possesses the property by him, etc., as
well as concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making activity" of
Paragraph 4 of Item 13.7.2 of the same section, the statements
"When establishing by law the constitutionally necessary legal
regulation, the legislator must also establish the ways of
providing legal conditions of preventing the origination of
incompatibility of the duties of a member of the Seimas with
engaging in business, commerce or other profit-making private
activity. Such legal regulation would also create
pre-conditions for avoiding the use of the mandate of a member
of the Seimas in the interests of a member of the Seimas in the
interests of private benefit of certain persons, i.e.
particular interests, rather than the interests of the Nation
and the State of Lithuania, and confrontation of the private
interests of a member of the Seimas with the interests of the
Nation and the State of Lithuania, i.e. public interests; this
would strengthen the Nation's trust in members of the Seimas as
representatives of the Nation and the Seimas as the
representation of the Nation. Such control is an important
condition of implementation of the provision of Item 7 of
Article 63 of the Constitution, under which the powers of a
member of the Seimas become terminated if he takes up, or does
not resign from, employment which is incompatible with the
duties of a member of the Seimas" of Paragraph 3 of Item 13.7.3
of the same section and the statements "Attention should be
drawn to the fact that various methods of ensuring the
incompatibility of the duties of a member of the parliament and
engagement in business control and control over it are
established in foreign democratic states under the rule of law,
for example trust of possession of property of a member of the
parliament of other compulsory transfer to other persons,
anonymous possession of such property, control over agreements
concluded between the enterprises, the founder, owner, co-owner
or a shareholder of which is a member of the parliament, and
establishments, enterprises, and organisations of the public
sector, etc." of Paragraph 4 of the same Item mean that: (1) a
member of the Seimas can be the founder, owner, co-owner or
participant (sharer, shareholder, member of the cooperative
etc.) of a legal entity, as well as the owner of a farmer's
farm; (2) the member of the Seimas who is the founder, owner,
co-owner or participant of a legal entity, can have all the
rights (material and non-material) of a participant of the
legal entity, but he cannot participate or vote in the meetings
of the aforementioned legal entity himself; (3) the member of
the Seimas who is the founder, owner, co-owner or participant
of a legal entity, can exercise his rights as those of a
participant of the legal entity only through another person,
and the owner's rights of the member of the Seimas-the owner of
a farmer's farm-must be exercised following the same procedure;
(4) entering into a contract with another person on handling
property of a member of the Seimas (handling of property, trust
of property, transfer, assignment of the voting right in the
meeting of the participants of a legal entity, etc.),
inspection of its implementation and amendment are not
considered to be activities of the member of the Seimas, which
incompatible with the status of a member of the Seimas; (5)
restrictions for making contracts, related to handling of the
property owned by the right of ownership, which, in order to
avoid the conflict of public and private interests, must be
established not only for a member of the Seimas, but for his
close relatives and members of the family as well (interpreting
these notions in accordance with Paragraph 5 of Article 2 of
the Law on the Adjustment of Public and Private Interests in
the State Service of the Republic of Lithuania), also for the
legal entities, participants of which are members of the Seimas
and their close relatives and family members, if the shares
(divvies) possessed by the member of the Seimas and his close
relatives and family members allow to make the decisive
influence upon the control of the legal entity.
2. The member of the Seimas A. Salamakinas inter alia
requests to construe whether the statements of Paragraph 3 of
Item 13.7.1, of Paragraph 4 of Item 13.7.2 and of Paragraphs 3
and 4 of Item 13.7.3 of Chapter II of the reasoning part of the
Ruling mean that: a member of the Seimas can be the founder,
owner, co-owner or participant (sharer, shareholder, member of
a cooperative etc.) of a legal entity, as well as the owner of
a farmer's farm; a member of the Seimas, who is the founder,
owner, co-owner or participant of a legal entity, can have all
the rights (material and non-material) of a participant of the
legal entity, but he cannot participate or vote in the meetings
of the aforementioned legal entity himself; a member of the
Seimas, who is the founder, owner, co-owner or participant of a
legal entity, can exercise his rights as those of a participant
of the legal entity only through another person, and the
owner's rights of a member of the Seimas-the owner of a
farmer's farm-must be exercised following the same procedure.
While construing the statements of Paragraph 3 of Item
13.7.1, of Paragraph 4 of Item 13.7.2 and of Paragraphs 3 and 4
of Item 13.7.3 of Chapter II in the reasoning part of the
Ruling pointed out by the member of the Seimas A. Salamakinas
in the aspect indicated by him, it should be noted that none of
the statements indicates that a member of the Seimas is
prohibited from being the founder, owner, co-owner or
shareholder of any private enterprise, establishment,
organisation, that such a member of the Seimas, according to
the Constitution, cannot enjoy the rights of the founder,
owner, co-owner or shareholder of a private enterprise,
establishment, organisation, that he cannot exercise these
rights by himself, except for the prohibition for a member of
the Seimas formulated in one of these statements: "the member
of the Seimas who is a founder, owner, co-owner or shareholder
of a private enterprise, establishment or organisation, may not
take an office, perform work, perform service, fulfil other
functions, perform other tasks, hold a so-called office of
honour, etc. (including participation in collegial management,
control and other bodies) in the said establishment, enterprise
or organisation, or represent it" (Paragraph 3 of Item 13.7.1
of Chapter II in the reasoning part of the Ruling).
On the other hand, the aforementioned statements do not
deny the duty of the legislator originating from the
Constitution to establish efficient control of the
incompatibility of the duties of a member of the Seimas with
other duties or work, as well as the prohibition from receiving
other remuneration, save the exceptions established in the
Constitution. The Seimas has a certain discretion in
establishing such control; incompatibility of the duties of a
member of the Seimas with other duties and work, as well as
getting no other remuneration, save the exceptions established
in the Constitution, can be ensured by the Seimas inter alia by
establishing also such legal regulation that one might trust
other persons with handling of the property of the member of
the Seimas (after establishing legal guarantees of protection
and preservation of such property), and that transactions of
enterprises, whose founder, owner, co-owner or shareholder is a
member of the Seimas, with the establishments, enterprises,
organisations, etc. of the public sector would be under
control.
3. Having taken account of the aforementioned arguments it
should be stated that the statements "The constitutional legal
status of a member of the Seimas, a representative of the
Nation, comprising inter alia the limitations established in
Paragraph 1 of Article 60 of the Constitution, determines
particularities of exercising of the person's rights
consolidated in Article 46 and 48 of the Constitution, which
are enjoyed by him as any other human being. It needs to be
noted that the member of the Seimas who is a founder, owner,
co-owner or shareholder of a private enterprise, establishment
or organisation, may not take an office, perform work, perform
service, fulfil other functions, perform other tasks, hold a
so-called office of honour, etc. (including participation in
collegial management, control and other bodies) in the said
establishment, enterprise or organisation, or represent it.
This is incompatible with the constitutional legal status of a
member of the Seimas: having acquired all the rights of the
representative of the Nation and will not be engaged in
business, commerce or other profit-making private activity" of
Paragraph 3 of Item 13.7.1 of Chapter II of the reasoning part
of the Ruling, the statements "The legal regulation established
in Paragraph 1 of Article 60 of the Constitution may not be
construed in the way denying the essence of the consolidated in
Article 23 of the Constitution right of ownership, enjoyed by a
member of the Seimas as well. Thus, the provisions of Paragraph
1 of Article 60 of the Constitution, consolidating the
incompatibility of the duties of a member of the Seimas with
inter alia engaging in business, commerce or other
profit-making private activity, may not be construed as the
ones meaning the prohibition for a member of the Seimas from
using his property, getting income from it, possessing the
property owned by him, etc., as well as from concluding
contracts related hereto also. However, such an activity of a
member of the Seimas, when he uses his property, gets income
from it, possesses the property by him, etc., as well as
concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making activity" of
Paragraph 4 of Item 13.7.2 of the same section, the statements
"When establishing by law the constitutionally necessary legal
regulation, the legislator must also establish the ways of
providing legal conditions of preventing the origination of
incompatibility of the duties of a member of the Seimas with
engaging in business, commerce or other profit-making private
activity. Such legal regulation would also create
pre-conditions for avoiding the use of the mandate of a member
of the Seimas in the interests of private benefit of certain
persons, i.e. particular interests, rather than the interests
of the Nation and the State of Lithuania, and confrontation of
the private interests of a member of the Seimas with the
interests of the Nation and the State of Lithuania, and
confrontation of the private interests of a member of the
Seimas with the interests of the nation and the state of
Lithuania, i.e. public interests; this would strengthen the
Nation's trust in members of the Seimas as representatives of
the Nation and the Seimas as the representation of the Nation.
Such control is an important condition of implementation of the
provision of Item 7 of Article 63 of the Constitution, under
which the powers of a member of the Seimas become terminated if
he takes up, or does not resign from, employment which is
incompatible with the duties of a member of the Seimas" of
Paragraph 3 of Item 13.7.3 of the same section and the
statements "Attention should be drawn to the fact that various
methods of ensuring the incompatibility of the duties of a
member of the parliament and engagement in business control and
control over it are established in foreign democratic states
under the rule of law, for example trust of possession of
property of a member of the parliament of other compulsory
transfer to other persons, anonymous possession of such
property, control over agreements concluded between the
enterprises, the founder, owner, co-owner or a shareholder of
which is a member of the parliament, and establishments,
enterprises, and organisations of the public sector, etc." of
Paragraph 4 of the same item do not mean that a member of the
Seimas is prohibited from being the founder, owner, co-owner or
shareholder of any enterprise, establishment, organisation,
that such a member of the Seimas, according to the
Constitution, cannot have the rights of the founder, owner,
co-owner or shareholder of a private enterprise, establishment
or organisation, that he cannot exercise the rights himself,
except for the fact that such a member of the Seimas, who is
the founder, owner, co-owner or shareholder of a private
enterprise, establishment or organisation, may not take an
office, perform work, perform service, fulfil other functions,
perform other tasks, hold a so-called office of honour, etc.
(including participation in collegial management, control and
other bodies) in that enterprise, establishment, organisation
or represent it.
4. The member of the Seimas A. Salamakinas inter alia
requests to construe whether the statements of Paragraph 3 of
Item 13.7.1, of Paragraph 4 of Item 13.7.2 and of Paragraphs 3
and 4 of Item 13.7.3 of Chapter II in the reasoning part of the
Ruling indicated by him mean that entering into a contract with
another person on handling the property of a member of the
Seimas (handling of property, trust of property, transfer,
assignment of the voting right in the meeting of the
participants of a legal entity, etc.), inspection of its
implementation and amendment are not considered to be
activities of a member of the Seimas, which are incompatible
with the status of a member of the Seimas.
There are no statements in Paragraph 3 of Item 13.7.1, in
Paragraph 4 of Item 13.7.2 and in Paragraphs 3 and 4 of Item
13.7.3 of Chapter II in the reasoning part of the Ruling
concerning "entering into a contract with another person on
handling the property of a member of the Seimas (handling of
property, trust of property, transfer, assignment of the voting
right in the meeting of the participants of the legal entity,
etc.), inspection of its implementation and amendment".
Entering into a contract with another person as regards
handling the property of a the member of the Seimas, inspection
of its implementation and amendment were not the subject of
investigation in constitutional justice case No. 04/04.
Considering the fact that the Constitutional Court must
construe its ruling without changing its content, the fact that
entering into a contract with another person as regards
handling the property of the member of the Seimas, inspection
of its implementation and amendment were not the subject of
investigation in constitutional justice case No. 04/04, the
statements of Paragraph 3 of Item 13.7.1, of Paragraph 4 of
Item 13.7.2 and of Paragraphs 3 and 4 of Item 13.7.3 of Chapter
II in the reasoning part of the Ruling indicated by the member
of the Seimas A. Salamakinas cannot be construed in this
Decision of the Constitutional Court in the aspect whether they
mean that entering into a contract with another person as
regards handling the property of a member of the Seimas
(handling of property, trust of property, transfer, assignment
of the voting right in the meeting of the participants of a
legal entity, etc.), inspection of its implementation and
amendment are considered to be activities of a member of the
Seimas, which are incompatible with the status of a member of
the Seimas.
5. The member of the Seimas A. Salamakinas inter alia
requests to construe whether the statements of Paragraph 3 of
Item 13.7.1, of Paragraph 4 of Item 13.7.2 and of Paragraphs 3
and 4 of Item 13.7.3 of Chapter II in the reasoning part of the
Ruling indicated by him mean that restrictions for making
contracts, related to handling of the property owned by the
right of ownership, which, in order to avoid the conflict of
public and private interests, must be established not only for
a member of the Seimas, but for his close relatives and members
of the family as well (interpreting these notions in accordance
with Paragraph 5 of Article 2 of the Law on the Adjustment of
Public and Private Interests in the State Service of the
Republic of Lithuania), also for the legal entities, the
participants of which are members of the Seimas and their close
relatives and family members, if the shares (divvies) possessed
by the member of the Seimas and his close relatives and family
members allow to make the decisive influence upon the control
of the legal entity.
In Paragraph 3 of Item 13.7.1, Paragraph 4 of Item 13.7.2
and Paragraphs 3 and 4 of Item 13.7.3 of Chapter II in the
reasoning part of the Ruling there are no statements on
restrictions for making contracts, related to handling of the
property owned by the right of ownership, which, in order to
avoid the conflict of public and private interests, must be
established not only for a member of the Seimas, but for his
close relatives and members of the family, as well as for the
legal entities, participants of which are members of the Seimas
and their close relatives and family members, if the shares
(divvies) possessed by the member of the Seimas and his close
relatives and family members allow to make the decisive
influence upon the control of the legal entity. The
restrictions for making contracts, related to handling of the
property owned by the right of ownership, which, in order to
avoid the conflict of public and private interests, either must
or can be established not only for a member of the Seimas, but
for his close relatives and members of the family, as well as
for the legal entities, the participants of which are members
of the Seimas and their close relatives and family members, if
the shares (divvies) possessed by the member of the Seimas and
his close relatives and family members allow to make the
decisive influence upon the control of the legal entity, were
not the subject of investigation in constitutional justice case
No. 04/04. Moreover, the constitutional justice case did not
investigate and the Ruling does not mention the legal
regulation established in the Law on the Adjustment of Public
and Private Interests in the State Service.
While considering the fact that the Constitutional Court
must construe its ruling without changing its content, the fact
that restrictions for making contracts, related to handling of
the property owned by the right of ownership, which, in order
to avoid the conflict of public and private interests, either
must or can be established not only for the member of the
Seimas, but for his close relatives and members of the family,
as well as for the legal entities, the participants of which
are members of the Seimas and their close relatives and family
members, if the shares (divvies) possessed by the member of the
Seimas and his close relatives and family members allow to make
the decisive influence upon the control of the legal entity,
were not the subject of investigation in constitutional justice
case No. 04/04, the statements of Paragraph 3 of Item 13.7.1,
Paragraph 4 of Item 13.7.2 and Paragraphs 3 and 4 of Item
13.7.3 of Item 13.7.3 of Chapter II in the reasoning part of
the Ruling indicated by the member of the Seimas A. Salamakinas
cannot be construed in this Decision of the Constitutional
Court in the aspect that the restrictions for making contracts,
related to handling of the property owned by the right of
ownership, which, in order to avoid the conflict of public and
private interests, must be established not only for a member of
the Seimas, but for his close relatives and members of the
family as well (interpreting these notions in accordance with
Paragraph 5 of Article 2 of the Law on the Adjustment of Public
and Private Interests in the State Service), also for the legal
entities, the participants of which are members of the Seimas
and their close relatives and family members, if the shares
(divvies) possessed by the member of the Seimas and his close
relatives and family members allow to make the decisive
influence upon the control of the legal entity.
V
1. The member of the Seimas A. Salamakinas requests to
construe whether the statements "The constitutional right to
freely form unions is linked with an opportunity to take
various offices in such associations; the said opportunity is a
derivative from the constitutional right to freely form unions.
The procedure of taking the said offices in unions is
established not by the state, but by acts regulating the
internal order (articles of association, statutes, etc.) of the
union itself (which, according to the Constitution, is
autonomous in regard to public power, as it has been already
mentioned)" of Paragraph 1 of Item 13.8.4 of Chapter II in the
reasoning part of the Ruling and the statements "Under the
Constitution, no legal regulation artificially or unreasonably
limiting the freedom of forming unions and their activity may
be established as this would violate the constitutional
value-the right of union (freedom of association). Therefore,
under the Constitution the legislator may not establish any
such legal regulation which would limit the right of a member
of the Seimas to be a member of the union specified in the
Constitution and to take office in it, as in regard to the said
person this would violate the constitutional value-the right of
union, or freedom of association" of Paragraph 2 of the same
item mean that a member of the Seimas can take the leading
office in a trade union, political party, association, a member
of which he is and represent it.
2. It should be noted that the notions "the leading office
in a trade union, political party, association" and
"representation of a trade union, political party and
association" are not used in the statements of Item 13.8.4 of
Chapter II in the reasoning part of the Ruling indicated by the
member of the Seimas A. Salamakinas.
3. The freedom of societies, political parties,
associations established in the Constitution, as well as
freedom of establishment and operation of associations implies
that all these associations can, while following laws, to
independently regulate by their own acts (articles of
association, statutes, etc.) their internal order (Paragraph 2
of Item 13.8.2 of Chapter II of the reasoning part of the
Ruling), therefore, also independently establish their
organisational structure, various offices (inter alia the
leading ones), and the procedure of taking them.
4. While construing the statements of Item 13.8.4 of
Chapter II in the reasoning part of the Ruling in the aspect
indicated by the member of the Seimas A. Salamakinas, whether a
member of the Seimas can take the leading office in a political
party, a member of which he is, and to represent it, it should
be noted that political parties belong to the kind of
associations, the aim and purpose of establishment and activity
of which are inseparable from seeking political power, thus, as
well from participation in the elections of the representative
institution, the Seimas.
The Constitution does not forbid a member of the Seimas
from taking various offices (inter alia the leading ones) in a
political party, a member of which he is, and to represent it.
5. It was mentioned that Paragraph 1 of Article 60 of the
Constitution establishes a prohibition of a member of the
Seimas from taking any other office in state establishments or
organisations, also having another job in business, commercial
and other private establishments and enterprises, and Paragraph
3 of the same article establishes a prohibition of a member of
the Seimas from receiving any other remuneration than the
remuneration as a member of the Seimas and remuneration for
creative activities.
In this context it should be noted that a member of the
Seimas holding any office (inter alia the leading one) in a
political party, a member of which he is, according to the
Constitution cannot be linked with the political party and its
structural sub-divisions by labour relations regardless of
whether this activity is registered by any legal contract or
other legal act, or performed without any legal contract or
legal act, whether this activity is remunerated in any payment
or other form, or not.
It should also be noted that the prohibition to a member
of the Seimas from receiving any other remuneration, except the
remuneration as a member of the Seimas and remuneration for
creative activities established in the Constitution, means that
a member of the Seimas holding any office (inter alia the
leading one) in a political party, a member of which he is,
under the Constitution cannot receive any remuneration for this
activity.
In this context it should be stated that, as mentioned
above, the content of the notion "remuneration" used in
Paragraph 3 of Article 60 of the Constitution is a
constitutional notion, it bears constitutional content and it
should not be associated with the remuneration paid by labour
etc. contracts and agreements; the content of the notion
"remuneration" in Paragraph 3 of Article 60 is broader, it
comprises monetary payments of various types or provisions of
other material benefits to the member of the Seimas.
6. Having taken account of the arguments set forth, it
should be held that the statements of Item 13.8.4 of Chapter II
in the reasoning part of the Ruling do not mean by themselves
that a member of the Seimas cannot hold an office (inter alia
the leading one) in a political party, a member of which he is
and represent it.
7. While construing the statements of Item 13.8.4 of
Chapter II in the reasoning part of the Ruling indicated by the
member of the Seimas A. Salamakinas in the aspect that a member
of the Seimas can take a leading office in a trade union,
association, a member of which he is, and represent it, it
should be noted that freedom of associations as well as freedom
of establishment and activity of trade unions imply that all
these associations can, while following laws, independently
regulate their organisational structure, various offices (inter
alia the leading ones), also the procedure of taking them.
The Constitution does not forbid a member of the Seimas
from taking various offices (inter alia the leading ones) in a
trade union, other association, a member of which he is and
represent it.
8. It should also be stressed that the prohibition
established in Paragraph 1 of Article 60 of the Constitution to
a member of the Seimas from taking any other office in state
establishments or organisations, as well as work in business,
commercial or other private establishments or enterprises and
the prohibition established in Paragraph 3 of the same article
to a member of the Seimas from receiving any other remuneration
than the remunerations as a member of the Seimas and
remuneration for creative activities imply that the member of
the Seimas who holds a certain office (inter alia the leading
one) in a trade union, other association, a member of which he
is, cannot be linked, according to the Constitution, with the
trade union, other association or its structural subdivisions
regardless of whether this activity is registered by any legal
contract or other legal act, or performed without any legal
contract or legal act, regardless of whether or not this
activity is remunerated in any payment or other form, also that
a member of the Seimas, who holds any office (inter alia the
leading one) in a trade union, other association, a member of
which he is, cannot, according to the Constitution, receive any
remuneration for this activity.
While construing whether a member of the Seimas can
represent a trade union, other association, a member of which
he is, it should also be noted that the representation of a
trade union, other association by a member of the Seimas bears
certain peculiarities determined by the constitutional legal
status of a member of the Seimas as a representative of the
Nation, which differs essentially from the legal status of
other citizens or state officials. According to the
Constitution, a member of the Seimas cannot represent a trade
union, other association in legal relations with the state and
municipal establishments, enterprises, organisations (their
officers), as well as with other (non-state or municipal)
establishments, enterprises, organisations (their officers),
which under the laws were assigned (entrusted) with the
implementation of certain state functions or which in certain
ways and forms established in the laws participate in
implementation of state functions, since the aforementioned
establishments, enterprises, organisations (their officers) are
(might be) directly or indirectly dependent on decisions of the
Seimas (including decisions on appointment of budget
appropriations), the parliamentary control implemented by the
Seimas, the opportunity of the Seimas to appoint and dismiss
heads of the institutions, other state officials or making
influence upon their appointment etc. Such representation, when
a certain trade union, other association is represented by a
member of the Seimas in legal relations with the state and
municipal establishments, enterprises, organisations (their
officers), as well as with other (non-state or municipal)
establishments, enterprises, organisations (their officers),
which under the law were assigned (entrusted) with the
implementation of certain state functions or which in certain
ways and forms established in the laws participate in
implementation of state functions, might create preconditions
for such a legal situation, where a trade union, other
association represented by a member of the Seimas would gain an
additional advantage over the other subject of these relations
solely due to the fact that it is represented by a member of
the Seimas.
6. Having taken account of the arguments set forth, it
should be stated that the statements of Item 13.8.4 of Chapter
II in the reasoning part of the Ruling do not mean by
themselves that a member of the Seimas cannot hold an office
(inter alia the leading one) in a trade union, other
association, a member of which he is and represent it.
VI
1. The member of the Seimas A. Salamakinas requests to
construe whether the statements of Items 12, 13.1, 13.5, 13.6
and 13.9 of Chapter II in the reasoning part of the Ruling as
regards the incompatibility of the duties of a member of the
Seimas with other duties and work mean that the principle of
the incompatibility of the duties of a member of the Seimas
with other duties is violated by a member of the Seimas who
does not work nor performs any activity, because he was granted
holiday for the period of office of a member of the Seimas
following the procedure established in Articles 183, 184 and
185 of the Labour Code or his activity (powers) have been
suspended following the procedure established in the laws
(Article 221 of the Law on Notary Office, Article 11 of the Law
on Bailiffs, Article 14 of the Law on Audit).
2. Items 12, 13.1, 13.5, 13.6 and 13.9 of Chapter II in
the Ruling of the Constitutional Court indicated by the member
of the Seimas are stated in the following way:
1) "It has been held in this Ruling of the Constitutional
Court that certain constitutional duties of a member of the
Seimas are formulated in the Constitution as certain
limitations applied in regard to a member of the
Seimas-incompatibility of the duties of a member of the Seimas
with other duties or a job, save the exceptions established in
the Constitution, and a prohibition for a member of the Seimas
from receiving other remuneration, except the cases established
in the Constitution; these limitations are meant to ensure the
free mandate of a member of the Seimas as a representative of
the nation, and the continuity of his work at the Seimas and
other parliamentary activities. When evaluating the entirety of
limitations entrenched in the Constitution in regard to a
member of the Seimas, it is to be held that in this respect the
constitutional legal status of a member of the Seimas, a
representative of the Nation, is different in essence from the
constitutional legal status of other citizens and it determines
particularities of implementation of particular rights of a
person entrenched in the Constitution, which a member of the
Seimas enjoys as a human being and citizen.
It was already mentioned that under Article 60 of the
Constitution the duties of a member of the Seimas are
incompatible with any other duties in State institutions and
organisations, as well as with work in business, commercial and
other private establishments or enterprises (Paragraph 1); a
member of the Seimas may be appointed only either as Prime
Minister or Minister (Paragraph 2); a member of the Seimas may
not receive any remuneration, with the exception of
remuneration for creative activities (Paragraph 3).
It was mentioned also that the Constitution is an integral
act, that all its provisions are interrelated and constitute a
harmonious system that no provision of the Constitution may be
construed only literally, that no provision of the Constitution
may be construed so that the content of another constitutional
provision should be distorted or denied, since thus the essence
of the whole constitutional regulation would be distorted and
the balance of the constitutional values would be disturbed.
Therefore, the provision of Paragraph 1 of Article 60 of
the Constitution that the duties of a member of the Seimas are
incompatible with any other duties in state institutions and
organisations, as well as with work in business, commercial and
other private establishments or enterprises is to be
interpreted while taking account of the provision of this
paragraph that a member of the Seimas may hold office at the
Seimas, the provision of Paragraph 2 of this article that a
member of the Seimas may be appointed only either as Prime
Minister or Minister, and the integral constitutional legal
regulation, thus of all the constitutional provisions
entrenching the constitutional status of a member of the Seimas
(the rights and duties of a member of the Seimas, guarantees of
his work at the Seimas and other parliamentary activities,
limitations applied in regard to a member of the Seimas, etc.),
of the constitutional provisions entrenching the rights of a
person, as well as the purposes of the constitutional
regulation, which comprise inter alia the purposes on which the
functions of legal regulation established in Paragraph 1 of
Article 60 of the Constitution are based, the purposes of this
regulation in regard to the entire integral constitutional
legal regulation, of the provision of Paragraph 1 of Article 60
of the Constitution that a member of the Seimas may hold office
at the Seimas, of the provision of Paragraph 2 of this article
that a member of the Seimas may be appointed only either as
Prime Minister or Minister, and also of the entire integral
constitutional legal regulation in general; the purposes of the
constitutional regulation should be taken account of when
interpreting the provision of Paragraph 3 of Article 60 of the
Constitution that a member of the Seimas may not receive any
remuneration, with the exception of remuneration for creative
activities also.
The purpose of the legal regulation established in
Paragraph 1 of Article 60 of the Constitution is to ensure the
free mandate of a member of the Seimas as a representative of
the Nation, and continuity of his work at the Seimas and other
parliamentary activities, to guarantee that a member of the
Seimas shall act in the interests of the Nation and the State
of Lithuania rather than their personal interests or the
interests of a group, or the interests of political parties or
political organisation, public or other organisations, and
other persons, which nominated or supported the candidate to
the office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas, that a member of the Seimas will not use his status
and the free mandate for the private benefit or the benefit of
his close relatives or other persons, that each member of the
Seimas will have an opportunity to exercise his constitutional
duty to constantly participate at the work of the Seimas, the
representation of the Nation, to incessantly perform his
constitutional powers, as a representative of the Nation. This
purpose would never be reached or conditions preventing the
accomplishment of this purpose would be created if a member of
the Seimas had an opportunity to hold another office to be
engaged in other work, with the exception of the offices
expressis verbis specified in the Constitution, as well as the
offices which may be held upon the implication of the
Constitution; this purpose would never be reached or conditions
preventing the accomplishment of this purpose would also be
created if a member of the Seimas received remuneration other
than that specified in the Constitution" (Item 12 of Chapter II
in the reasoning part of the Ruling);
2) "The formula 'the duties of a member of the Seimas,
with the exception of his duties in the Seimas' is used in
Paragraph 1 of Article 60 of the Constitution. Under the
Constitution, a member of the Seimas may hold certain other
offices in the Seimas as well.
The offices in the Seimas directly specified in the
Constitution, which may be taken by a member of the Seimas, are
the Office of the President of the Seimas and his deputy.
It was already mentioned that under Article 76 of the
Constitution the structure and procedure of activities of the
Seimas are established by the Statute of the Seimas. Therefore,
the Statute of the Seimas may establish other offices in the
Seimas, which may be taken by certain members of the Seimas,
the offices in the governing body of the Seimas, as well as the
offices of the heads of structural sub-units of the Seimas and
other offices of the Seimas, which may be held by a member of
the Seimas only; the Statute of the Seimas also provides for an
opportunity for a member of the Seimas to take certain offices
in inter-parliamentary and other international institutions,
which may only be taken by a member of the Seimas-the formula
'his duties in the Seimas' of Article 60 of the Constitution
comprises these offices as well.
Thus, the formula 'his duties in the Seimas' of Article 60
of the Constitution comprises: (1) the office of the President
of the Seimas, Deputy President of the Seimas; (2) the offices
of a member of the Seimas at the Seimas, which are taken by a
member of the Seimas pursuant to the Statute of the Seimas in
the governing body of the Seimas or when leading a structural
sub-unit of the Seimas, as well as other offices, which may be
taken in the Seimas only by a member of the Seimas; (3) the
offices of a member of the Seimas in inter-parliamentary and
other international institutions, which may only be taken by
member of the Seimas" (Item 13.1 of Chapter II in the reasoning
part of the Ruling);
3) "It is impossible to construe constitutional norms and
principles on the basis of the legal acts adopted by the
legislator and other entities of law-making, as then the
supremacy of the Constitution in the legal system would be
denied" (Constitutional Court ruling of 12 July 2001).
It needs to be stressed that concepts "duties" and "work"
used in Paragraph 1 of Article 60 of the Constitution are
constitutional concepts, they bear the constitutional content
and may not be construed only following the definition of
similar concepts in laws and other legal acts (for example,
legal acts regulating labour or public service relations). In
this regard the duties and work specified in Paragraph 1 of
Article 60 of the Constitution are not to be linked with
employment or similar contracts and agreements" (Item 13.5 of
Chapter II in the reasoning part of the Ruling);
4) "The notion 'duties' used in the formula 'duties in
State institutions and organisations' in Paragraph 1 of Article
60 of the Constitution and the notion 'work' used in the
formula 'work in business, commercial and other private
establishments or enterprises' in this paragraph are to be
construed with regard to the purpose of the constitutional
legal regulation established in this article, and all the other
constitutional provisions consolidating the constitutional
status of a member of the Seimas. It should be noted that
taking an office implies that the person who takes the said
office must perform certain work, fulfil certain other
functions, perform certain other tasks, etc., while performing
work implies that a person must take certain office, fulfil
certain other functions, perform certain other tasks, etc. The
notion 'duties' used in the formula 'duties in State
institutions and organisations' in Paragraph 1 of Article 60 of
the Constitution and the notion 'work' used in the formula
'work in business, commercial and other private establishments
or enterprises' in this paragraph means activity. Therefore, in
the context of the whole constitutional integral regulation
these notions may not be confronted, and they may not be
construed literally, by ignoring their correlates.
The notion 'duties' used in the formula 'duties in State
institutions and organisations' in Paragraph of Article 60 of
the Constitution comprises any activity in a Lithuanian state,
municipal, foreign or international establishment, enterprise
or organisation, or representing such an establishment,
enterprise or organisation, if this activity is linked with
taking office, performing of works, holding the office,
fulfilment of other functions, performing other tasks, holding
the so-called office of honour, etc. (including participation
in collegial management, control and other bodies),
irrespective of whether this activity is of permanent,
temporary or one-time (episodic) type, whether this activity is
remunerated in any payment or other form, or not, whether this
activity is referred to in legal acts as offices or any other
term, whether this activity is duties of a leader or not,
whether the person is elected or appointed to the office,
whether this activity is registered by any legal contract or
other legal act, or performed without any legal contract or
legal act, save the exceptions expressis verbis established or
implicitly provided for in the Constitution; the notion 'work'
used in the formula 'work in business, commercial and other
private establishment or enterprises' in Paragraph 1 of Article
60 of the Constitution also comprises any activity in a
Lithuanian, foreign or international private establishment,
enterprise or organisation, or representation of such an
establishment, enterprise or organisation, if this activity is
linked with performing work, taking the office, performing
service, fulfilment of other functions, performing other tasks,
holding a so-called office of honour, etc. (including
participation in collegial management, control and other
bodies), irrespective of whether this activity is of permanent,
temporary, or one-time (episodic) type, whether this activity
is remunerated in any payment or other form, or not, whether
this activity is referred to in legal acts as work, or any
other term, whether or not any other persons engaged in any
activity of this establishment, enterprise or organisation
exist, whether this activity is duties of a leader or not,
whether the activity is registered by any legal contract or
other legal act, or performed without any legal contract or
legal act; the notion 'work' used in the formula 'work in
business, commercial and other private establishments or
enterprises' of Paragraph 1 of Article 60 of the Constitution
also comprises any other private profit-making activity, as
well as any profit-making activity engaged in without
establishing an enterprise, establishment or organisation"
(Item 13.9 of Chapter II in the reasoning part of the Ruling);
5) "In conclusion it is to be held that the principle of
incompatibility of the duties of a member of the Seimas with
other offices or work means that the duties of a member of the
Seimas are incompatible with any other activity (taking office,
performing work, performing service, fulfilment of other
functions, performing other tasks, holding a so-called office
of honour) in a state establishment, enterprise, organisation
of Lithuania, or a municipal establishment, enterprise,
organisation, or an international establishment, enterprise,
organisation, or a private establishment, enterprise,
organisation or representing such an establishment, enterprise,
organisation, with the exception of the duties expressis verbis
or implicitly set down in the Constitution: (1) the duties of a
member of the Seimas specified in Paragraph 1 of Article 60 of
the Constitution, which comprise the office of the President of
the Seimas and the Deputy President of the Seimas, the office
of a member of the Seimas in Seimas, which are taken by a
member of the Seimas pursuant to the Statute of the Seimas in
the governing body of the Seimas or when leading a structural
sub-unit of the Seimas, as well as other offices, which may be
taken in the Seimas only by a member of the Seimas, also
offices of a member of the Seimas in inter-parliamentary and
other international institutions, which may only be taken by a
member of the Seimas; (2) the office of Prime Minister or
Minister specified in Paragraph 2 of Article 60 of the
Constitution; (3) offices in the unions specified in the
Constitution, which are linked with his membership in a
respective union" (Item 13.9 of Chapter II in the reasoning
part of the Ruling).
3. The statements provided in the quoted Items of Chapter
II in the reasoning part of the Ruling disclose the
incompatibility of the duties of a member of the Seimas with
other duties and work in various aspects.
4. The request of the member of the Seimas A. Salamakinas
and his explanations at the Constitutional Court hearing reveal
that he requests to construe the statements of Items 12, 13.1,
13.5, 13.6 and 13.9 of Chapter II in the reasoning part of the
Ruling on incompatibility of the duties of a member of the
Seimas with other duties and work in the aspect whether they
mean that a legal situation is permissible in which a member of
the Seimas is a person who is related to a certain enterprise,
establishment, organisation by labour relations and he was
granted holiday for the period of office of a member of the
Seimas (under Articles 183, 184 and 185 of the Labour Code) or
his activity (powers) have been suspended following the
procedure established in the laws (Article 221 of the Law on
Notary Office, Article 11 of the Law on Bailiffs, Article 14 of
the Law on Audit) and who does not perform work or does not
perform activity in the respective enterprise, establishment,
or organisation.
5. While construing the statements of Items 12, 13.1,
13.5, 13.6 and 13.9 of Chapter II in the reasoning part of the
Ruling in the aspect indicated by the member of the Seimas A.
Salamakinas, it should be noted that the legal regulation
established in Articles 183, 184 and 185 of the Labour Code,
Article 221 of the Law on Notary Office, Article 11 of the Law
on Bailiffs, Article 14 of the Law on Audit indicated in his
request, was not the subject of investigation in constitutional
justice case No. 04/04.
While considering the fact that the Constitutional Court
must construe its ruling without changing its content and the
fact that legal regulation established in Articles 183, 184 and
185 of the Labour Code, Article 221 of the Law on Notary
Office, Article 11 of the Law on Bailiffs, Article 14 of the
Law on Audit was not the subject of investigation in
constitutional justice case No. 04/04, their content cannot be
construed in this Decision of the Constitutional Court, either.
6. Alongside, it should be noted that it is clear form the
statements of Items 12, 13.1, 13.5, 13.6, 13.9 of Chapter II in
the reasoning part of the Ruling on incompatibility of the
duties of a member of the Seimas with other duties and work
that according to the Constitution a legal situation is
impermissible where a member of the Seimas is related to a
certain state or municipal enterprise, establishment,
organisation, or a private enterprise, establishment, or
organisation, as well as with a certain public organisation,
trade union, political party, association or other union
(regardless of its title) by labour relations, except for the
work (duties) expressis verbis indicated or implicitly provided
in the Constitution.
This constitutional prohibition also means that the person
elected as a member of the Seimas must terminate labour
relations in all state or municipal enterprises,
establishments, organisations, private enterprises,
establishments, organisations, as well as in public
organisations, trade unions, political parties, associations or
other unions (regardless of their titles) before the first
sitting of the newly-elected Seimas, during which he takes an
oath. It was held in the Ruling that such "construction of the
Constitution, that, purportedly, a member of the Seimas, having
taken the oath, for certain period of time still may hold
another office or perform other work, which is incompatible
with the duties of a member of the Seimas (save the exceptions
provided for in the Constitution), <...> would be unreasonable
as the established in the Constitution prohibitions applicable
to a member of the Seimas <...> would be disregarded; this
would be in violation of the Constitution" (Item 15 of Chapter
II in the reasoning part of the Ruling).
Therefore, if a member of the Seimas, having taken the
oath, would not terminate his labour relations with a certain
state or municipal enterprise, establishment, organisation,
private enterprise, establishment, organisation or any public
organisation, trade union, political party, association or
other union (regardless of its title) for some time, that would
be disregard of the prohibitions for a member of the Seimas
established in the Constitution, i.e. a violation of the
Constitution. The Constitution would also be violated in case a
member of the Seimas, having taken the oath, would not
terminate his labour relations with a certain state or
municipal enterprise, establishment, organisation, or a private
enterprise, establishment, organisation or any public
organisation, trade union, political party, association or
other union (regardless of its title), but by a decision of the
state or municipal enterprise, establishment, organisation, or
the private enterprise, establishment, organisation or public
organisation, trade union, political party, association or
other union (regardless of its title) or its institution or
officer he would be granted holiday or in any other way he
would be allowed not to perform respective work, not to perform
respective activities temporarily (for the period when he
discharges the duties of a member of the Seimas) or discharging
of his authority (powers) is suspended, etc. In this context it
should be noted that a person's leaving for any holiday,
suspension of performance of his powers (duties) etc., do not
terminate the labour relations of this person and the
respective state, municipal enterprise, establishment,
organisation, private enterprise, establishment, organisation
or the public organisation, trade union, political party,
association or other union (regardless of its title), but on
the contrary, confirms that this person is (remains) related to
the respective state, municipal enterprise, establishment,
organisation, private enterprise, establishment, organisation,
as well as with the public organisation, trade union, political
party, association or other union (regardless of its title) by
labour relations.
7. Under Item 7 of Article 63 of the Constitution, powers
of a member of the Seimas become terminated if he does not
resign from employment, which is incompatible with the duties
of a member of the Seimas. If it becomes clear that such legal
situation occurred where a member of the Seimas, having taken
the oath, has not resigned from the employment which is
incompatible with the duties of a member of the Seimas, under
the Constitution there appears a duty for the Seimas to
terminate the powers of such a member of the Seimas; the Seimas
shall adopt a corresponding resolution thereon.
8. Taking account the arguments set forth, it should be
held that the statements of Items 12, 13.1, 13.5, 13.6, 13.9 in
Chapter II of the reasoning part of the Ruling on
incompatibility of the duties of a member of the Seimas with
other duties and work mean that under the Constitution a legal
situation is impermissible, in which a member of the Seimas is
a person who has not terminated his labour relations with a
certain state or municipal enterprise, establishment,
organisation, a private enterprise, establishment,
organisation, or a certain public organisation, trade union,
political party, association or other union (regardless of its
title), but is granted holiday or in any other way is allowed
not to perform respective work, not to perform respective
activities temporarily (for the period when he discharges the
duties of a member of the Seimas) or performance of his
authority (duties) in that enterprise, establishment,
organisation, public organisation, trade union, political
party, association or other union (regardless of its title) is
suspended in another way.
Conforming to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, the Constitutional Court of
the Republic of Lithuania has adopted the following
decision:
To construe that:
1. The notion "continuity of the activity of the Seimas"
used in the Ruling of the Constitutional Court of the Republic
of Lithuania "On the compliance of Paragraph 4 of Article 15 of
the Statute of the Seimas of the Republic of Lithuania (wording
of 22 December 1998) with the Constitution of the Republic of
Lithuania" of 1 July 2004 does not mean that the continuity of
work of the Seimas would be violated, if the paid annual
holidays established in Paragraph 1 of the Article 49 of the
Constitution of the Republic of Lithuania was granted to all
the members of the Seimas during the period between the
sessions of the Seimas (save the exceptions, which arise from
the Constitution of the Republic of Lithuania, concerning the
time for annual paid holidays of the President of the Seimas
and Deputy President (Presidents) of the Seimas).
2. The statement "the notion 'work' used in the formula
'work in business, commercial and other private establishments
or enterprises' of Paragraph 1 of Article 60 of the
Constitution also comprises any other private profit-making
activity, as well as any profit-making activity engaged in
without establishing an enterprise, establishment or
organisation" of Paragraph 2 of Item 13.6 in Chapter II of the
reasoning part of the Ruling of the Constitutional Court of the
Republic of Lithuania "On the compliance of Paragraph 4 of
Article 15 of the Statute of the Seimas of the Republic of
Lithuania (wording of 22 December 1998) with the Constitution
of the Republic of Lithuania" of 1 July 2004 does not mean that
any activity, which can be described as farming, is by itself
incompatible with the constitutional legal status of a member
of the Seimas (if it has not turned into a business, commerce
or any other activity prohibited to a member of the Seimas by
the Constitution of the Republic of Lithuania).
3. The statements "The constitutional legal status of a
member of the Seimas, a representative of the Nation,
comprising inter alia the limitations established in Paragraph
1 of Article 60 of the Constitution, determines particularities
of exercising of the person's rights consolidated in Article 46
and 48 of the Constitution, which are enjoyed by him as any
other human being. It needs to be noted that the member of the
Seimas who is a founder, owner, co-owner or shareholder of a
private enterprise, establishment or organisation, may not take
an office, perform work, perform service, fulfil other
functions, perform other tasks, hold a so-called office of
honour, etc. (including participation in collegial management,
control and other bodies) in the said establishment, enterprise
or organisation, or represent it. This is incompatible with the
constitutional legal status of a member of the Seimas: having
acquired all the rights of the representative of the Nation and
will not be engaged in business, commerce or other
profit-making private activity" of Paragraph 3 of Item 13.7.1
of Chapter II of the reasoning part of the Ruling of the
Constitutional Court of the Republic of Lithuania "On the
compliance of Paragraph 4 of Article 15 of the Statute of the
Seimas of the Republic of Lithuania (wording of 22 December
1998) with the Constitution of the Republic of Lithuania" of 1
July 2004, the statements "The legal regulation established in
Paragraph 1 of Article 60 of the Constitution may not be
construed in the way denying the essence of the consolidated in
Article 23 of the Constitution right of ownership, enjoyed by a
member of the Seimas as well. Thus, the provisions of Paragraph
1 of Article 60 of the Constitution, consolidating the
incompatibility of the duties of a member of the Seimas with
inter alia engaging in business, commerce or other
profit-making private activity, may not be construed as the
ones meaning the prohibition for a member of the Seimas from
using his property, getting income from it, possessing the
property owned by him, etc., as well as from concluding
contracts related hereto also. However, such an activity of a
member of the Seimas, when he uses his property, gets income
from it, possesses the property by him, etc., as well as
concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making activity" of
Paragraph 4 of Item 13.7.2 of the same section, the statements
"When establishing by law the constitutionally necessary legal
regulation, the legislator must also establish the ways of
providing legal conditions of preventing the origination of
incompatibility of the duties of a member of the Seimas with
engaging in business, commerce or other profit-making private
activity. Such legal regulation would also create
pre-conditions for avoiding the use of the mandate of a member
of the Seimas in the interests of private benefit of certain
persons, i.e. particular interests, rather than the interests
of the Nation and the State of Lithuania, and confrontation of
the private interests of a member of the Seimas with the
interests of the Nation and the State of Lithuania, and
confrontation of the private interests of a member of the
Seimas with the interests of the nation and the state of
Lithuania, i.e. public interests; this would strengthen the
Nation's trust in members of the Seimas as representatives of
the Nation and the Seimas as the representation of the Nation.
Such control is an important condition of implementation of the
provision of Item 7 of Article 63 of the Constitution, under
which the powers of a member of the Seimas become terminated if
he takes up, or does not resign from, employment which is
incompatible with the duties of a member of the Seimas" of
Paragraph 3 of Item 13.7.3 of the same section and the
statements "Attention should be drawn to the fact that various
methods of ensuring the incompatibility of the duties of a
member of the parliament and engagement in business control and
control over it are established in foreign democratic states
under the rule of law, for example trust of possession of
property of a member of the parliament of other compulsory
transfer to other persons, anonymous possession of such
property, control over agreements concluded between the
enterprises, the founder, owner, co-owner or a shareholder of
which is a member of the parliament, and establishments,
enterprises, and organisations of the public sector, etc." of
Paragraph 4 of the same item do not mean that a member of the
Seimas is prohibited from being the founder, owner, co-owner or
shareholder of any enterprise, establishment, organisation,
that such a member of the Seimas, according to the
Constitution, cannot have the rights of the founder, owner,
co-owner or shareholder of a private enterprise, establishment
or organisation, that he cannot exercise the rights himself,
except for the fact that such a member of the Seimas, who is
the founder, owner, co-owner or shareholder of a private
enterprise, establishment or organisation, may not take an
office, perform work, perform service, fulfil other functions,
perform other tasks, hold a so-called office of honour, etc.
(including participation in collegial management, control and
other bodies) in that enterprise, establishment, organisation
or represent it.
4. The statements of Item 13.8.4 of Chapter II in the
reasoning part of the Ruling of the Constitutional Court of the
Republic of Lithuania "On the compliance of Paragraph 4 of
Article 15 of the Statute of the Seimas of the Republic of
Lithuania (wording of 22 December 1998) with the Constitution
of the Republic of Lithuania" of 1 July 2004 do not mean by
themselves that a member of the Seimas cannot take an office
(inter alia the leading one) in a political party, a member of
which he is and represent it.
5. The statements of Item 13.8.4 of Chapter II in the
reasoning part of the Ruling of the Constitutional Court of the
Republic of Lithuania "On the compliance of Paragraph 4 of
Article 15 of the Statute of the Seimas of the Republic of
Lithuania (wording of 22 December 1998) with the Constitution
of the Republic of Lithuania" of 1 July 2004 do not mean by
themselves that a member of the Seimas cannot hold an office
(inter alia the leading one) in a trade union, other
association, a member of which he is and represent it.
6. The statements of Items 12, 13.1, 13.5, 13.6, 13.9 of
Chapter II in the reasoning part of the Ruling of the
Constitutional Court of the Republic of Lithuania "On the
compliance of Paragraph 4 of Article 15 of the Statute of the
Seimas of the Republic of Lithuania (wording of 22 December
1998) with the Constitution of the Republic of Lithuania" of 1
July 2004 on incompatibility of the duties of a member of the
Seimas with other duties and work mean that under the
Constitution of the Republic of Lithuania a legal situation is
impermissible, in which a member of the Seimas is a person who
has not terminated his labour relations with a certain state or
municipal enterprise, establishment, organisation, a private
enterprise, establishment, organisation, or a certain public
organisation, trade union, political party, association or
other union (regardless of its title), but is granted holiday
or in any other way is allowed not to perform respective work,
not to perform respective activities temporarily (for the
period when he discharges the duties of a member of the Seimas)
or performance of his authority (duties) in that enterprise,
establishment, organisation, public organisation, trade union,
political party, association or other union (regardless of its
title) is suspended in another way.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision 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