Lietuviškai
Case No. 06/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 1 OF ARTICLE 34 (WORDING OF 21
DECEMBER 2006) OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO
MUNICIPAL COUNCILS WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
9 February 2007
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of
the Republic of Lithuania, the party concerned, who was Bronius
Kleponis, senior advisor of the Committee on State Administration
and Local Authorities, and Audronė Ožiūnienė, advisor of the Law
Department of the Office of the Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 8 February
2007, in the public hearing at the Court heard case No. 06/07
subsequent to the petition of the Supreme Administrative Court of
Lithuania, the petitioner, requesting to investigate whether the
provision "candidates to members of the municipal council may be
nominated by a party" of Paragraph 1 of Article 34 (wording of 21
December 2006) of the Republic of Lithuania Law on Elections to
Municipal Councils to the extent that, according to the
petitioner, it grants to political parties exceptional rights to
nominate candidates to members of municipal councils, is not in
conflict with Paragraph 2 of Article 35, Paragraph 2 of Article
119 and Paragraph 1 of Article 135 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was considering a civil case. By its ruling, the said
court suspended the consideration of the case and applied to the
Constitutional Court with a petition requesting to investigate
whether the provision "candidates to members of the municipal
council may be nominated by a party" of Paragraph 1 of Article 34
(wording of 21 December 2006) of the Law on Elections to
Municipal Councils (hereinafter also referred to as the Law) to
the extent that, according to the petitioner, it grants to
political parties exceptional rights to nominate candidates to
members of municipal councils, is not in conflict with Paragraph
2 of Article 35, Paragraph 2 of Article 119 and Paragraph 1 of
Article 135 of the Constitution.
II
The petition of the petitioner is based on the following
arguments.
1. It is established in Paragraph 1 of Article 34
(wording of 21 December 2006) of the Law: "Candidates to members
of the municipal council may be nominated by a party, registered
according to the Law on Political Parties and meeting
requirements of the Law on Political Parties related to the
number of members of the party, no later than within 65 days
before the elections." Thus only political parties have the right
to nominate candidates to members of municipal councils. It means
that voters do not elect members of municipal councils directly,
but they do so from among candidates selected by political
parties (their bodies). Such legal regulation may violate the
principle of direct suffrage entrenched in Paragraph 2 of Article
119 of the Constitution.
2. Political parties nominate to members of municipal
councils only such candidates, who are members of the said
political parties, who accept the programme of the particular
political party or undertake other obligations before the
respective political party. Thus members of political parties
have more opportunities to become elected to municipal councils
in comparison to persons, who are not members of political
parties, which means that they enjoy a "broader" passive
electoral right in comparison to persons, who do not belong to
political parties. By such legal regulation one may violate the
principle of equal suffrage entrenched in Paragraph 2 of Article
119 of the Constitution.
3. The disputed provision virtually compels the persons
who strive to become members of municipal councils to join
political parties. Such legal regulation may be in conflict with
the principle of free decision on becoming a member of political
party, as entrenched in Paragraph 2 of Article 35 of the
Constitution.
4. According to Article 25 of the International Covenant
on Civil and Political Rights, every citizen has the right,
without any of the distinctions mentioned in Article 2 (inter
alia discrimination based on political views) and without
unreasonable restrictions, to be elected at genuine periodic
elections, which shall be by universal and equal suffrage. In the
opinion of the petitioner, the disputed provision violates the
provisions of Articles 2 and 25 of the above-mentioned covenant;
this may be in conflict with the principle of following the
undertaken international obligations and respect to the
universally recognised principles of international law, as
entrenched in Paragraph 1 of Article 135 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from representatives of the Seimas, the party concerned, who were
B. Kleponis and A. Ožiūnienė, stating that the disputed provision
of Paragraph 1 of Article 34 of the Law is not in conflict with
Paragraph 2 of Article 35, Paragraph 2 of Article 119 and
Paragraph 1 of Article 135 of the Constitution. The position of
the representatives of the Seimas is based on the following
arguments.
1. The Constitution restricts the discretion of the
legislator in the area of regulation the procedure of elections
to members of municipal councils, however, it does not establish
any requirements to choose one or another system of elections.
The chosen proportional system of elections (Paragraph 1 of
Article 1 of the Law) and the established procedure of nominating
candidates to members of municipal councils (Paragraph 1 of
Article 34 of the Law) are in line with the political reality and
the need to ensure political accountability on local level and
thus to increase the trust in the political system, it ensures
fair representation in municipal councils.
2. Neither the provision "candidates to members of
municipal councils may be nominated by a party" of Paragraph 1 of
Article 34 of the Law on Elections to Municipal Councils, nor
other articles of this law regulating the nomination of
candidates to members of municipal councils, demand that
political parties nominate only their own members as candidates
to members of municipal councils; thus persons not belonging to
any party, as well as representatives of other parties, may be
included in the list of candidates to members of the municipal
council, too. Therefore, there are no grounds to state that the
disputed provision of the Law is in conflict with the
constitutional provision "no one may be compelled to belong to
any society, political party, or association".
3. The established in the Law procedure of elections to
municipal councils and principles of elections, which are,
according to the representatives of the Seimas, the party
concerned, in line with restrictions of active and passive
electoral right entrenched in Paragraph 2 of Article 119 of the
Constitution and which do not violate the constitutional
principles of elections to municipal councils, do not infringe
the universally recognised principles and norms of international
law, either. B. Kleponis and A. Ožiūnienė state that they know no
international legal act entrenching the requirement that, in case
of proportionate system of elections, the participation of self-
nominated candidates is compulsory.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Z. Vaigauskas, the Chairman of the Central Electoral
Commission of the Republic of Lithuania.
V
At the hearing of the Constitutional Court, B. Kleponis
and A. Ožiūnienė, the representatives of the Seimas, the party
concerned, virtually repeated the arguments set forth in their
written explanations.
The Constitutional Court
holds that:
I
1. On 31 May 1994, the Seimas adopted the Republic of
Lithuania Law on Elections to Municipal Councils.
It was inter alia established in Paragraph 1 of Article
30 of this Law, which was adopted by the Seimas, that "political
parties, political organisations have the right to nominate
candidates to members of municipal council". In the context of
the constitutional justice case at issue, it should be noted that
the President of the Republic did not sign this law and by his
Decree No. 334 "On Referring the Republic of Lithuania Law on
Elections to Municipal Councils, which was Adopted by the Seimas
of the Republic of Lithuania, Back to the Seimas of the Republic
of Lithuania for Repeated Consideration" of 16 June 1994 referred
it back to the Seimas for repeated consideration; one of the
reasons indicated in this decree of the President of the Republic
was that "having not taken account of the fact that according to
<
> Article 5 of the Constitution municipal councils do not
execute state power, one has formulated in the law a provision
that only political parties and organisations have the right to
nominate candidates to members of the council, while public
organisations are not permitted to nominate candidates to members
of the council", and it was proposed to set forth Article 30 of
the aforementioned law, which was adopted by the Seimas, by
indicating that "political parties, political organisations and
public organisations have the right to nominate candidates to
members of a council".
2. On 7 July 1994, the Seimas adopted the Law on
Elections to Municipal Councils, which became effective on 13
July 1994.
When adopting the above-mentioned law, the Seimas also
adopted the amendment to Paragraph 1 of Article 30 of this law as
indicated by the President of the Republic.
3. The Law on Elections to Municipal Councils (wording of
7 July 1994) was amended more than once.
4. On 23 December 1996, the Seimas adopted the Republic
of Lithuania Law on Amending the Law on Elections to Municipal
Councils, by Article 1 of which the Law on Elections to Municipal
Councils (wording of 7 July 1994 with subsequent amendments) was
set forth in a new wording. The Law on Amending the Law on
Elections to Municipal Councils, which was adopted by the Seimas
on 23 December 1996, became effective on 31 December 1996 (save
the exception indicated in it).
5. The Law on Elections to Municipal Councils (wording of
23 December 1996) was amended and/or supplemented more than once,
as well.
6. On 19 October 1999, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Elections to Municipal
Councils, by Article 1 of which the Law on Elections to Municipal
Councils (wording of 23 December 1996 with subsequent amendments
and supplements) was set forth in a new wording. The Law on
Amending the Law on Elections to Municipal Councils, which was
adopted by the Seimas on 19 October 1999, became effective on 4
November 1999 (save the exception indicated in it).
7. The Law on Elections to Municipal Councils (wording of
19 October 1999) was amended and/or supplemented more than once,
as well.
8. On 21 December 2006, the Seimas adopted the Republic
of Lithuania Law on Amending the Law on Elections to Municipal
Councils, by Article 1 of which the Law on Elections to Municipal
Councils (wording of 19 October 1999 with all subsequent
amendments and supplements) was set forth in a new wording. The
Law on Elections to Municipal Councils (wording of 21 December
2006) became effective on 30 December 2006.
9. In this context one should note that on 11 July 2006
the Seimas adopted Resolution No. X-759 "On Elections to
Municipal Councils of 2007", by Article 1 of which elections to
municipal councils were scheduled to be held on 25 February 2007.
This resolution of the Seimas became effective on 21 July 2006.
Thus, the Law was set forth in the new wording after more
than five months from the day of announcing the date of
forthcoming elections to municipal councils, which, at that
moment, were due to be held within less than two months from the
date when the above-mentioned law of the new wording became
effective.
10. The Law on Elections to Municipal Councils (wording
of 21 December 2006) was amended by the Republic of Lithuania Law
on Amending Articles 2, 14, 16, 29, 31, 55, 62, 64, 65, 67, 69
and 73 of the Law on Elections to Municipal Councils, which was
adopted by the Seimas on 18 January 2007, and became effective on
19 January 2007. Paragraph 1 of Article 34 of the Law, the
compliance of which (to respective extent) with the Constitution
is disputed by the petitioner, has not been amended.
II
1. It is established in Article 34 "Nomination of
Candidates to Members of a Municipal Council" (wording of 21
December 2006):
"1. Candidates to members of the municipal council may be
nominated by a party, registered according to the Law on
Political Parties and meeting requirements of the Law on
Political Parties related to the number of members of the party,
no later than within 65 days before the elections.
2. The party shall nominate candidates to members of the
municipal council by submitting a list of candidates, in which
candidates are listed in sequence established by the latter. The
number of candidates to members of the municipal council in the
list may not be less than 10 and twice as big as the number of
mandates set for the concrete constituency. Candidates to members
of the municipal council must meet the requirements of Article 2
of this Law."
2. It is inter alia established in Paragraph 1 of Article
1 of the Law that members of municipal councils are elected in
multi-candidate constituencies on the basis of the proportionate
election system, and in Paragraph 1 of Article 10 it is
established that "one multi-candidate constituency, in which all
voters of this municipality enjoying the active electoral right
take vote, is established in order to organise and hold elections
within the territory of the municipality".
3. When construing the legal regulation established in
Paragraph 1 of Article 34 (wording of 21 December 2006) of the
Law on Elections to Municipal Councils, the compliance of the
provision "candidates to members of the municipal council may be
nominated by a party" of which with the Constitution is disputed
by the petitioner, it is to be held, in the context of the whole
legal regulation established in this law, that the Law
establishes only the proportionate system of elections to
municipal councils (their members) and that only the candidates
included in the lists of political parties compete in elections
to municipal councils. Individuals not included in the lists of
political parties may not be nominated as candidates in elections
to municipal councils. Moreover, it is not established that
societies (associations), which are not political parties, could
nominate candidates to members of municipal councils.
4. It should be noted that the proportionate system of
elections was entrenched in the Law on Elections to Municipal
Councils from the very date of the coming into effect of this law
(the first wording of 7 July 1994), i.e. as from 13 July 1994. It
should also be noted that, according to this law, for a certain
period individuals, included neither in the lists of political
parties, nor in the lists of political organisations and public
organisations, could compete in the elections to municipal
councils, too. For example, it was established in Paragraph 1 of
Article 30 of the Law on Elections to Municipal Councils (wording
of 7 July 1994) inter alia that "political parties, political
organisations and public organisations have the right to nominate
candidates to members of the council"; it was established in
Paragraph 1 (wording of 23 December 1996) of Article 35 and
Paragraph 1 (wording of 19 October 1999) of Article 34 of the Law
on Elections to Municipal Councils that "a political party or a
political organisation may nominate candidates to members of the
council".
Thus, when the legal regulation established in the Law on
Elections to Municipal Councils was changed, the list persons
enjoying the right to nominate candidates to members of municipal
councils was narrowed.
III
On the compliance of Paragraph 1 of Article 34 (wording
of 21 December 2006) of the Law on Elections to Municipal
Councils with Paragraph 2 of Article 119 of the Constitution.
1. It is established in Article 119 of the Constitution:
"The right to self-government shall be guaranteed to
administrative units of the territory of the State, which are
provided for by law. It shall be implemented through
corresponding municipal councils.
The members of municipal councils shall be elected for a
four-year term, as provided for by law, from among citizens of
the Republic of Lithuania and other permanent residents of the
administrative unit by the citizens of the Republic of Lithuania
and other permanent residents of the administrative unit, on the
basis of universal, equal and direct suffrage by secret ballot.
The procedure for the organisation and activities of
self-government institutions shall be established by law.
For the direct implementation of the laws of the Republic
of Lithuania, the decisions of the Government and the municipal
council, the municipal council shall form executive bodies
accountable to it."
2. When deciding, subsequent to the petition of the
Supreme Administrative Court of Lithuania, the petitioner,
whether the provision "candidates to members of the municipal
council may be nominated by a party" of Article 34 (wording of 21
December 2006) of the Law on Elections to Municipal Councils to
the extent that, according to the petitioner, it grants to
political parties exceptional rights to nominate candidates to
members of municipal councils, is not in conflict with Paragraph
2 of Article 119 of the Constitution, one must pay heed to the
constitutional concept of local self-government and ascertain
what imperatives of the legal regulation of relations of
elections to municipal councils arise from the Constitution.
In its acts adopted in previous constitutional justice
cases the Constitutional Court, while construing the provisions
of the Constitution related to local self-government and other
provisions, has formulated quite wide official constitutional
doctrine of local self-government. In the context of the
constitutional justice case at issue it should be noted that, as
already held by the Constitutional Court:
- state administration and local self-government are two
systems of public power, which are consolidated in the
Constitution; local self-government is self-regulation and self-
action of the communities of the administrative units of state
territory, in accordance with the competence defined by the
Constitution and laws, which are provided for by law, i.e.
territorial communities, which are composed of permanent
residents of these units (citizens of the Republic of Lithuania
and other permanent residents); it is a local public
administration system operating on the basis of self-action
principles, which is not directly subordinate to state power
institutions, which is not identified with self-administration,
and which is formed and functions on other constitutional grounds
than state power (Constitutional Court rulings of 18 February
1998, 14 January 2002, 24 December 2002, 17 March 2003, and 30
May 2003, decision of 11 February 2004, rulings of 25 May 2004,
13 December 2004, and 8 July 2005);
- the right to self-government is implemented through
democratic representation; municipal councils, through which the
right to self-government is implemented, may not be formed in a
way so that there might arise doubts as to their legitimacy and
legality, inter alia, as to the fact whether the principles of a
democratic state under the rule of law were not violated in the
course of election of persons to political representative
institutions (Constitutional Court ruling of 24 December 2002,
conclusion of 5 November 2004);
- according to Paragraph 2 of Article 119 of the
Constitution the enjoyment of the active and passive electoral
right in the election of members of municipal councils is linked
with a legal factpermanent residence of the person in a
corresponding administrative unit of the territory of the
Republic of Lithuania; the legislator has a constitutional duty
to establish by law such a procedure for determination of the
fact of the permanent residence of the person in a corresponding
administrative unit of the territory of the Republic of Lithuania
so that members of municipal councils would only be elected by
the persons who could reasonably be held permanent residents of
corresponding administrative units of the territory of the
Republic of Lithuania and that members of municipal councils
would only be elected from the persons who could reasonably be
held permanent residents of corresponding administrative units of
the territory of the Republic of Lithuania (Constitutional Court
ruling of 24 December 2002);
- according to Article 141 of the Constitution persons
performing actual military service or alternative service, as
well as officers of the national defence system, of the police
and the Interior, non-commissioned officers, re-enlistees and
other paid officials of paramilitary and security services who
have not retired to the reserve may not be members of municipal
councils; according to the Constitution, the same persons may not
discharge the functions in the implementation of state power and,
at the same time, be members of municipal councils, through which
the right of self-government is implemented, therefore members of
the Seimas, the President of the Republic, members of the
Government, and judges may not be members of municipal councils;
the state officials who, according to the Constitution and laws,
enjoy the powers to control or supervise the activities of
municipal councils, i.e. the state officials (servants and other
persons irrespective of how they are referred to in laws) who,
under the Constitution and laws, enjoy the powers to adopt the
decisions, on which depend the adoption and implementation of
decisions of municipal councils within their competence defined
in the Constitution and laws, may not be members of municipal
councils, either (Constitutional Court ruling of 24 December
2004, as well as decisions of 11 February 2004 and 13 February
2004); the said requirements of the Constitution do not mean that
the aforementioned persons do not have the right to seek to be
elected members of municipal councils (i.e. that they do not
enjoy the passive electoral right in the election of members of
municipal councils), but that when there occurs a legal situation
when a person indicated in Article 141 of the Constitution or a
person discharging the functions of state power, or a state
official who, under the Constitution and laws, enjoys the powers
to control or supervise activities of municipalities, is elected
a member of a municipal council, he, before the newly elected
municipal council convenes to the first sitting, must decide
whether to remain in office or to be a member of the municipal
council (Constitutional Court rulings of 24 December 2002 and 30
May 2003); citizens who are recognised incapable by court shall
not participate in elections (Paragraph 3 of Article 34 of the
Constitution);
- the Constitution establishes limitations on the active
electoral right in the elections to municipal councils, as well:
only the citizens and other permanent residents of administrative
units of the territory of the Republic of Lithuania who, on the
day of election, have not reached 18 years of age, as well as the
citizens and other permanent residents of administrative units of
the territory of the Republic of Lithuania who are recognised
incapable by a court do not enjoy the said right; no other
limitations on the active electoral right in the elections to
municipal councils are established in the Constitution.
3. It is established in Paragraph 1 of Article 34 of the
Constitution that citizens who, on the day of election, have
reached 18 years of age, shall have the electoral right; in
Paragraph 2 it is established that the right to be elected shall
be established by the Constitution of the Republic of Lithuania
and by the election laws. It should noted that the legislator
enjoys very broad discretion when implementing powers to
establish the system of elections to municipal councils that
arise from Article 34, Paragraphs 2 and 3 of Article 119 and
other provisions of the Constitution.
4. The Constitution does not establish any requirements
to the legislator as to what system of elections to municipal
councils should be chosen. It does not prohibit any changes to
the chosen system of elections to municipal councils, either. It
has been mentioned that state administration and local self-
government, as two systems of public power, are formed and
function on different constitutional bases. Thus, the legislator
may establish different systems of elections to the Seimas and to
municipal councils. According to the Constitution, the system of
elections to municipal councils should not necessarily be
designed by following the model of the system of elections to the
Seimas.
For example, the law may provide for only proportionate
or only majoritarian system of elections to municipal councils,
or a system, where elements of proportionate and majoritarian
systems are combined; neither proportionate or majoritarian
systems of elections alone, nor a system of elections, where
certain elements of proportionate and majoritarian systems are
combined, may be considered as ones that violate the principle of
direct elections (which is entrenched in the Constitution) which
demands that members of municipal councils are elected by voters
instead of any "intermediate" institutions (electoral college
etc.) formed on the basis of their vote. Moreover, neither
proportionate or majoritarian system of elections alone, nor a
system of elections, where certain elements of proportionate and
majoritarian systems are combined, may be considered as the ones
which in themselves create preconditions to violate the
requirements of free and democratic elections, the universal and
equal suffrage, secret ballot, as well as other standards of
elections in a democratic state under the rule of law.
5. The fact that the Constitution does not establish any
requirements to the legislator as to which system of elections to
municipal councils should be chosen, does not necessarily mean
that absolutely no requirements related to legal regulation of
elections to municipal councils arise from the Constitution. When
regulating the relations of elections to municipal councils by
the law, the legislator must pay heed to the provisions of the
Constitutionits norms and principles and the constitutional
concept of local self-government.
6. In this context it should be noted that such legal
regulation of the relations of elections to municipal councils,
as established by the law, should not create any pre-conditions
for violation of the constitutional provision that only the
persons who could reasonably be held permanent residents of
corresponding administrative units of the territory of the
Republic of Lithuania may and must elect members of the said
councils, and only such persons may and must be elected members
of the said councils.
7. The above-mentioned legal regulation, as established
by law, should not create preconditions to violate the right of
universal, equal and direct suffrage, as well as the imperative
of secret ballot.
In this context it should be mentioned that, as already
held by the Constitutional Court in its conclusion of 5 November
2004, the provision of Paragraph 3 of Article 55 of the
Constitution that the procedure for election of Members of the
Seimas shall be established by law, "means that the legislator
has a duty to consolidate, by means of a law, a system of
election of members of the Seimas, to establish the grounds and
procedure of arrangement of elections, inter alia including
nomination of candidates to members of the Seimas, electoral
campaigning, procedure of voting, establishment of the results of
election, procedures of settling electoral disputes, as well as
regulation of other relations of election of members of the
Seimas" and that "while doing so, the legislator <
> may neither
himself deny, distort or restrict the universal, equal and direct
electoral right and secret ballot, nor create any legal
preconditions for other entities to do so, as, otherwise, this
would mean that the supreme sovereign power of the Nation through
the representation of the Nation, the Seimas, is denied
altogether."
The provisions of this official constitutional doctrine
are applicable mutatis mutandis to the legal regulation of the
relations of elections to municipal councils as well.
8. It has been mentioned that local self-government is
self-regulation and self-action, in accordance with the
competence defined by the Constitution and laws, of the
territorial communities, which are composed of permanent
residents of the respective administrative units of the territory
of the Republic of Lithuania (citizens of the Republic of
Lithuania and other permanent residents), a local public
administration system operating on the basis of self-action
principles, which is not directly subordinate to state power
institutions.
The constitutional concept of local self-government
implies the broadest opportunities possible for all members of
respective territorial community to participate in the decision-
making process related to administration of affairs of the
particular location (territorial community), thusthe broadest
opportunities possible to compete for a place in a council of the
respective municipality.
Elections, including elections to municipal councils, are
a political process. The electoral right (both active and
passive) is closely related to the right of the citizen of the
Republic of Lithuania to participate in the governance of his
state, as entrenched in Article 33 of the Constitution, as well
as with the right of citizens to freely form political parties,
provided that the aims and activity thereof are not contrary to
the Constitution and laws, as entrenched in Article 35 of the
Constitution. It should be noted that the aims of formation of
political parties and their activity are inseparable from the
striving for public power, thus from participation in elections
to representative institutions of public power, inter alia
municipal councils, as well. Whatever system of elections to
municipal councils is chosen by the legislator (either
proportionate or majoritarian alone, or such a system, in which
certain elements of proportionate and majoritarian systems are
combined), under the Constitution, one may not establish any such
legal regulation which would prevent political parties or
candidates nominated or supported by them from participation in
the elections to municipal councils (elections of their members).
It has been held in this Constitutional Court ruling that the
proportionate system of elections in itself does not create any
preconditions for violation of the principle of direct elections,
which is entrenched in the Constitution, nor the requirements for
free and democratic elections, universal and equal suffrage,
secret ballot, nor other standards of a democratic state under
the rule of law.
Thus, under the Constitution, such (proportionate) system
of elections to municipal councils, when candidates included in
the lists of political parties compete for mandates of members of
municipal councils, is permissible.
9. On the other hand, that fact that under the
Constitution such (proportionate) system of elections to
municipal councils, when candidates included in the lists of
political parties compete for mandates of members of municipal
councils, is permissible, does not mean that it is
constitutionally justifiable to limit the lists of candidates
only to the lists formed by political parties, after one has
chosen only proportionate system of elections to municipal
councils (i.e. a system, where individuals, not included in the
list of candidates, may not be nominated as candidates in the
elections to municipal councils).
9.1. It is to be noted that, as already held by the
Constitutional Court in its rulings of 21 December 2000 and 1
July 2004, the content of the constitutional right to freely form
political parties is composed of the right to form societies,
political parties and associations, the right to join them and
take part in their activities, as well as the right not to be a
member of political parties, and the right to leave them; an
individual of his own free will either implements or does not
implement the right of whether to belong to a political party or
not; this free will of an individual is a fundamental principle
of membership in political parties. The provision of Paragraph 2
of Article 35 of the Constitution that no one may be compelled to
belong to any society, political party, or association, is a
constitutional guarantee that protects a person from belonging to
any association against his will.
In the context of the constitutional justice case at
issue one should especially stress that the said constitutional
guarantee that protects a person from belonging to any political
party against his will means also that the person may not be
directly or indirectly compelled to become related to any
political party by any relations that are other than formal
membership.
Thus, the legislator, when regulating by means of a law
the relations of elections to municipal councils, is bound by the
requirement that stems from the Constitution not to establish any
such legal regulation, where a person, who wishes to use his
passive electoral right in elections of members of municipal
councils, would be compelled to seek membership in a political
party or to become bound with a certain political party by
relations that are other than formal membership.
This implies the necessity to ensure that, providing one
has chosen only the proportionate system of elections to
municipal councils (i.e. a system where individual persons who
are not included in the lists of candidates may not be nominated
as candidates in the elections to municipal councils), the
members of territorial communitiespermanent residents of
administrative units of the territory of the Republic of
Lithuania (citizens of the Republic of Lithuania and other
permanent residents)should have an opportunity to be elected to
the councils of the respective municipalities even without
support of any political party and to be included as candidates
to members of municipal councils in some non-political-party
list. Having chosen such (proportional) system of elections of
municipal councils, one must ensure the possibility for the
members of territorial communities to implement their passive
electoral right by being included in other lists, not only those
of political parties (and individually, in case the legislator
decides so). The societies (associations) which enjoy under the
law the right to draw the said lists, may be formed for the
period of particular elections to municipal councils, but they
may also be of permanent activity, if this is established by the
law.
9.2. The legislator enjoys broad discretion to establish
requirements, which are to be met by the said lists drawn not by
political parties, inter alia to establish as to how many persons
should be included in such list, whether anyone should support
such a list in order to register it for the elections to
municipal councils, and if so, how many persons should do that,
the time when such list should be submitted for registration and
under what procedure it should be done, etc.
In the context of the constitutional justice case at
issue it should be noted that the legislator, while establishing
by law that members of territorial communities may exercise their
passive electoral right of electing members of municipal councils
by being included in non-political-party lists, must pay heed to
the obvious circumstance that elections are a political process.
Therefore, the legal regulation, where not every union
(established not for any type of objectives) (inter alia not
every association, public organisation, community) can make a
list of candidates to members of municipal councils and submit it
for registration for the elections to municipal councils, would
not be constitutionally groundless. In this context one should
note that the Constitution entrenches the institute not only of
political parties, but also that of political organisations
(Paragraph 3 of Article 35, Paragraph 2 of Article 44, Paragraph
2 of Article 83, Paragraph 2 of Article 113, Paragraph 1 of
Article 114, and Article 141 of the Constitution); although the
notions "political party" and "political organisation" are close,
they are not identical.
The legislator, while paying heed to the Constitution,
may also establish by the law certain criteria related to the
territory of activity of societies (which are not political
parties), which draw respective lists and submit them for
registration to elections to municipal councils (for example,
that they should cover respective administrative units of the
territory of the Republic of Lithuania).
9.3. Whatever system of elections is chosen by the
legislator, he must establish such legal regulation, which would
ensure democratic representation of permanent residents of
administrative units of the territory of the Republic of
Lithuania at the municipal institutions, the proper
implementation of the right of self-government and functioning of
municipal institutions, and not create any preconditions for
unpredictability, instability and non-efficiency of the activity
of municipal councils. Otherwise, the expectations of the voters
would be denied and a threat would arise that the constitutional
principle of responsible governance will be violated.
10. It has been mentioned that, according to the
Constitution, permanent residents of respective administrative
units of the territory of the Republic of Lithuania (not only
citizens of the Republic of Lithuania), may and must elect
members to municipal councils, as well as they may and must be
elected members to the said councils.
In this context it should be mentioned that under the
Directive 94/80/EC of the European Council of 19 December 1994
laying down the detailed arrangements whereby citizens of the
Union residing in a Member State of they are not nationals may
exercise the right to vote and to stand as a candidate there in
municipal elections (with all subsequent amendments), any person,
who on the reference day is a citizen of the Union and not a
national of the Member State of residence, but in any event
satisfies the same conditions in respect of the right to vote and
to stand as a candidate as that State imposes by law on its own
nationals, shall have the right inter alia to stand as a
candidate in municipal elections in the Member State of residence
(Article 3).
It should be noted also that according to the Republic of
Lithuania Law on Political Parties (wording of 23 March 2004), it
is not only citizens of the Republic of Lithuania who may be
founders and members of Lithuanian political parties (Paragraph 1
of Article 5). There are no legal arguments, which could be the
reason for raising doubts as to the constitutionality of this
provision of the Law on Political Parties.
Thus, the opportunities of permanent residents of
administrative units of the territory of the Republic of
Lithuania, who are not citizens of the Republic of Lithuania, to
be included in the lists of candidates drawn by political parties
are more limited in comparison to the permanent residents of
administrative units of the territory of the Republic of
Lithuania, who are citizens of the Republic of Lithuania. On the
other hand, neither the Law on Elections to Municipal Councils,
nor other laws prohibits these residents from being included in
the lists of candidates that are drawn by political parties for
the elections to municipal councils without being members of the
political parties, therefore, there are no grounds to state that
their passive electoral right is denied when electing members to
municipal councils.
11. It has been held in this Constitutional Court ruling
that the Law on Elections to Municipal Councils provides for only
such proportionate system of elections of municipal councils
(their members), where only candidates included in the lists of
political parties compete in the elections of municipal councils;
according to Paragraph 1 of Article 34 (wording of 21 December
2006) of the Law, the compliance of the provision "candidates to
members of the municipal council may be nominated by a party" of
which with the Constitution is disputed by the petitioner (by
construing it in the context of the whole legal regulation
established in this law), individuals, who are not included in
the lists of political parties, may not be nominated as
candidates in the elections to municipal councils, moreover, it
is not provided that candidates to members of municipal councils
may be nominated by union (associations) that are not political
parties.
12. Such legal regulation deviates from the requirement
that arises from the Constitution, inter alia Paragraph 2 of
Article 119 thereof, that after the legislator has chosen only
the proportionate system of elections to municipal councils (i.e.
the system, where individual persons not included in the lists of
candidates may not be nominated as candidates in the elections to
municipal councils), members of territorial communitiespermanent
residents of administrative units of the territory of the
Republic of Lithuaniashould be granted an opportunity to be
elected to the councils of the respective municipalities by being
included in some non-political-party list as candidates to
members of municipal councils.
On the other hand, although the legal regulation
established in Paragraph 1 of Article 34 (wording of 21 December
2006) of the Law deviates from the above-mentioned constitutional
requirement, still there are no legal grounds to hold that the
system of elections to municipal councils, which is entrenched in
the Law, in essence denies other imperatives of legal regulation
of the relations of elections to municipal bodies, which stem
from the Constitution, that it does not permit democratic
formation of municipal institutions, nor sufficient
implementation of the right of self-government. Thus, it is
impossible to assert that such legal regulation virtually denies
the constitutional concept of local self-government: one deviates
from it only to the extent that after the legislator has chosen
only the proportionate system of elections to municipal councils,
he has not established that permanent residents of administrative
units of the territory of the Republic of Lithuania may be
elected to the councils of respective municipalities even by
being included in the lists of candidates to the councils of
municipal councils that are drawn by entities other than
political parties.
13. Having taken account of the aforementioned arguments,
a conclusion is to be made that Paragraph 1 of Article 34
(wording of 21 December 2006) of the Law on Elections to
Municipal Councils to the extent that after the legislator has
chosen only the proportionate system of elections to municipal
councils, he has not established that permanent residents of
administrative units of the territory of the Republic of
Lithuania may be elected to the councils of respective
municipalities even by being included in the lists of candidates
to the councils of municipal councils that are drawn by entities
other than political parties, is in conflict with Article 119 of
the Constitution.
14. Having held this, the Constitutional Court will not
further investigate in this case of constitutional justice at
issue, whether the disputed legal regulation is not in conflict
with Paragraph 2 of Article 35 and paragraph 1 of Article 135 of
the Constitution.
IV
1. This Constitutional Court ruling, by which Paragraph 1
of Article 34 (wording of 21 December 2006) of the Law on
Elections to Municipal Councils to the extent that after the
legislator has chosen only the proportionate system of elections
to municipal councils, he has not established that permanent
residents of administrative units of the territory of the
Republic of Lithuania may be elected to the councils of
respective municipalities even by being included in the lists of
candidates to the councils of municipal councils that are drawn
by entities other than political parties, is recognised as being
in conflict with Paragraph 2 of Article 119 of the Constitution,
has been adopted already in the course of the process of
elections to municipal councils (as already mentioned, the
elections scheduled by Seimas Resolution No. X-759 "On Elections
to Municipal Councils of 2007" of 11 July 2006 to be held on 25
February 2007); besides some phases of the process of elections
as defined in the Law (for example: formation of constituencies
and electoral districts, formation of electoral commissions,
drafting the lists of voters, nomination of candidates to members
of municipal councils) have already been completed.
2. It has been held in this Constitutional Court ruling
that such (proportionate) system of elections to municipal
councils, where candidates included in the lists of political
parties compete for the mandates of members of municipal
councils, is possible under the Constitution. Paragraph 1 of
Article 34 of the Law is in conflict (to the respective extent)
with the Constitution not because political parties enjoy the
right to nominate candidates to members of municipal councils,
but because of the fact that, according to this paragraph,
members of territorial communitiespermanent residents of
administrative units of the territory of the Republic of
Lithuaniahave no opportunity to be elected to the respective
municipal councils also when they are included in some non-
political-party list as candidates to members of municipal
councils.
3. It has been also held in this Constitutional Court
ruling that although the legal regulation established in
Paragraph 1 of Article 34 (wording of 21 December 2006) of the
Law deviates from the constitutional requirement that, after the
legislator has chosen only the proportionate system of elections
to municipal councils (i.e. a system, where individual persons
who are not included in the lists of candidates may not be
nominated as candidates in the elections of municipal councils),
members of territorial communitiespermanent residents of
administrative units of the territory of the Republic of
Lithuaniashould have an opportunity to be elected to the
respective municipal councils even when they are included in some
non-political-party list as candidates to members of municipal
councils, still there are no legal grounds to hold that the
system of elections to municipal councils, which is entrenched in
the Law, virtually denies other imperatives of the legal
regulation of relations of elections to municipal councils that
stem from the Constitution, that it does not permit democratic
formation of self-government institutions, nor sufficient
exercise of the right of self-government, that by such legal
regulation one fundamentally denies the constitutional concept of
local self-government.
Thus, there exist no legal grounds to state that
permanent residents of administrative units of the territory of
the Republic of Lithuania have absolutely no opportunity to use
their passive electoral right when electing the municipal
councils in the elections to municipal councils that are
scheduled for 25 February 2007 or that these elections will not
be free and democratic only because Paragraph 1 of Article 34 of
the Law is in conflict (to the respective extent) with the
Constitution.
4. It should be noted that, having chosen only the
proportionate system of elections, the legislator has a duty to
regulate by law the relations of elections to municipal councils
so that, as already mentioned, members of territorial
communitiespermanent residents of administrative units of the
territory of the Republic of Lithuaniawould have the opportunity
to be elected to the respective municipal councils also when they
are included in some non-political-party list as candidates to
members of municipal councils.
The respective amendments to the Law on Elections to
Municipal Councils (inter alia the ones related to the
establishment of the procedure of nomination of candidates to
members of municipal councils, who are included in a non-
political-party list, registration of such lists, etc.) may be
made only by the legislator; no other law making or law applying
subject may do so, since not only the individual legal
regulation, but also the legal regulation of general legal
relationone of elements of the system of elections to municipal
councils, which is established to the whole statemust be
corrected. Until the legislator adopts the respective legislative
decisions, members of territorial communitiespermanent residents
of administrative units of the territory of the Republic of
Lithuaniamay not be elected as candidates to members of
municipal councils, if they are included in some non-political-
party list.
It should be stressed that universally recognised
standards of a democratic state under the rule of law obligate
the legislator to perform the said correction of the Law on
Elections to Municipal Councils so that there should be a
sufficiently long period prior to the next elections to municipal
councils.
5. It should be especially noted that if the elections to
municipal councils, which are to be held on 25 February 2007 and
which are, as already mentioned, in process (and some phases of
which are already completed), become revoked, postponed or
suspended in any other way only due to the fact that by this
Constitutional Court ruling Paragraph 1 of Article 34 (wording of
21 December 2006) of the Law on Elections to Municipal Councils
was recognised as the one which is in conflict (to the respective
extent) with the Constitution, one would inflict, doubtless to
say, much greater damage to the expectations of voters and to the
stability of not only local self-government, but to the whole
system of public power, in comparison to the fact that the
current elections to municipal councils would be held when
members of territorial communitiespermanent residents of
administrative units of the territory of the Republic of
Lithuaniamay not be elected to the respective municipal councils
if they are included in some non-political-party list as
candidates to members of municipal councils.
6. It should be also stressed that having taken into
account inter alia of the fact that the system of elections to
municipal councils entrenched in the Law on Elections to
Municipal Councils virtually does not deny the imperatives of
legal regulation of the relations of elections to municipal
councils that stem from the Constitution and does not prevent
democratic formation of municipal institutions, nor sufficient
implementation of the right of self-government, nor does it deny
the constitutional concept of local self-government in essence,
the constitutionality of the elections to municipal councils that
are to be held on 25 February 2007 may not be questioned only on
the ground that Paragraph 1 of Article 34 (wording of 21 December
2006) of the Law on Elections to Municipal Councils was
recognised by this Constitutional Court ruling as the one which
is in conflict (to the respective extent) with the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
The Constitutional Court of the Republic of Lithuania has
passed the following
ruling:
To recognise that Paragraph 1 of Article 34 (wording of
21 December 2006, Official Gazette Valstybės žinios, No. 143-
5445) of the Republic of Lithuania Law on Elections to Municipal
Councils to the extent that after the legislator has chosen only
the proportionate system of elections to municipal councils, he
has not established that permanent residents of administrative
units of the territory of the Republic of Lithuania may be
elected to the councils of respective municipalities even by
being included in the lists of candidates to the councils of
municipal councils that are drawn by entities other than
political parties, is in conflict with Paragraph 2 of Article 119
of the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis