Lt

On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER PARAGRAPH 2 OF ARTICLE 2 OF THE REPUBLIC OF LITHUANIA’S LAW ON PRESIDENTIAL ELECTIONS (WORDING OF 7 NOVEMBER 2013) IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 20 March 2014, No. KT12-S8/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Ramutė Ruškytė, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at the procedural sitting of the Constitutional Court, considered a petition “requesting an investigation into whether the provision—a person who has grossly violated the Constitution of the Republic of Lithuania or breached the oath and who has been removed from office or whose mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for impeachment proceedings may not stand for election as President of the Republic—of Paragraph 2 of Article 2 of the Republic of Lithuania’s Law on Presidential Elections (wording of the law (No. XII-586) of 7 November 2013; Official Gazette Valstybės žinios; 2013, No. 120-6055), in view of the content of norms, is not in conflict with Article 1 and Paragraph 3 of Article 138 of the Constitution, Article 2 of the Republic of Lithuania’s Constitutional Act ‘On Membership of the Republic of Lithuania in the European Union’, and the constitutional principle of a state under the rule of law” (petition No. 1B-16/2014) set out in the 18 March 2014 resolution (No. XII-790) of the Seimas of the Republic of Lithuania, the petitioner.

The Constitutional Court

has established:

On 18 March 2014, the Seimas, the petitioner, adopted the Resolution (No. XII-790) “On the application to the Constitutional Court of the Republic of Lithuania with the petition requesting an investigation into whether Paragraph 2 of Article 2 of the Republic of Lithuania’s Law on Presidential Elections is not in conflict with Article 1 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania, Article 2 of the Republic of Lithuania’s Constitutional Act ‘On Membership of the Republic of Lithuania in the European Union’, and the principle of a state under the rule of law”, in Article 1 whereof it set forth the petition requesting an investigation into whether the provision of Paragraph 2 of Article 2 of the Law on Presidential Elections (wording of 7 November 2013) to the effect that a person who has grossly violated the Constitution of the Republic of Lithuania or breached the oath and who has been removed from office or whose mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for impeachment proceedings may not stand for election as President of the Republic, is not in conflict with Article 1 and Paragraph 3 of Article 138 of the Constitution, Article 2 of the Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, and the constitutional principle of a state under the rule of law.

The petition of the Seimas, the petitioner, is virtually substantiated by the fact that the Republic of Lithuania is under the obligation to implement the judgment of the Grand Chamber of the European Court of Human Rights of 6 January 2011 delivered in the case of Paksas v. Lithuania (application No. 34932/04), wherein a permanent and irreversible prohibition to stand for election to the Seimas for a person who has been removed from office, in accordance with the procedure for impeachment proceedings, for a gross violation of the Constitution or a breach of the oath, was recognised as disproportionate and violating the right, enshrined in Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to stand as a candidate for the legislature. In the opinion of the petitioner, the impugned provision of the Law on Presidential Elections is not in line with the said judgment of the European Court of Human Rights.

The Constitutional Court

holds that:

  1. On 25 May 2004, the Constitutional Court adopted a ruling in which it assessed the compliance of the legal regulation which is established in Paragraph 2 (wording of 4 May 2004) of Article 2 of the Law on Presidential Elections and under which a person who had been removed from office or whose mandate of a member of the Seimas had been revoked by the Seimas in accordance with the procedure for impeachment proceedings could not stand for election as President of the Republic if less than five years had elapsed since their removal from office or the revocation of their mandate of a member of the Seimas, with the Constitution. The Constitutional Court ruled the said legal regulation—save the provision “if less than five years have elapsed since their removal from office or the revocation of their mandate of a member of the Seimas”, and the provision that a person who has been removed from office or their mandate of a member of the Seimas has been revoked by the Seimas, in accordance with the procedure for impeachment proceedings, for the commission of such a crime by which the Constitution has not been grossly violated and the oath has not been breached, may not stand for election as President—was not in conflict with the Constitution; the indicated provisions, with regard to which the said reservations had been made, were ruled to be in conflict with the Constitution.

The ruling of the Constitutional Court of 25 May 2004 came into force on 26 May 2004 after it was officially published in the official gazette “Valstybės žinios” (Official Gazette Valstybės žinios, 2004, No. 85-3094) and is still in force.

  1. In the course of the implementation of the said ruling of the Constitutional Court, it was established in Paragraph 2 (wording of 15 June 2004) of Article 2 of the Law on Presidential Elections that a person who has grossly violated the Constitution or breached the oath and who has been removed from office or whose mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for impeachment proceedings may not stand for election as President; this legal regulation has not changed after the Law on Presidential Elections was set forth in its wording of 12 June 2008.

It should be noted that the legal regulation impugned by the petitioner, which is consolidated in Paragraph 2 of Article 2 of the Law on Presidential Elections (wording of 7 November 2013) and under which a person who has grossly violated the Constitution or breached the oath and who has been removed from office or whose mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for impeachment proceedings may not stand for election as President of the Republic, in the aspect that it establishes a prohibition for a person to stand for election as President of the Republic if such a person has been removed from office or their mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for impeachment proceedings, is identical to the one that was assessed by the Constitutional Court in its ruling of 25 May 2004; thus, the Constitutional Court has already assessed the compliance of the said legal regulation with the Constitution in this regard.

  1. As mentioned before, the doubts of the Seimas, the petitioner, regarding the compliance of the impugned provision of the Law on Presidential Elections with the Constitution are virtually substantiated by the fact that this provision is not in line with the judgment of the Grand Chamber of the European Court of Human Rights of 6 January 2011, by means of which a permanent and irreversible prohibition to stand for election to the Seimas for a person who has been removed from office, in accordance with the procedure for impeachment proceedings, for a gross violation of the Constitution or a breach of the oath, was recognised as disproportionate and violating the right, enshrined in Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to stand as a candidate for the legislature.
  2. In the above-mentioned judgment of 6 January 2011 delivered in the case of Paksas v. Lithuania, the European Court of Human Rights held that Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms was applied only to the election of the “legislature”, i.e. it was applicable to the election of members of the Seimas of the Republic of Lithuania and not applicable to the election of the President of the Republic of Lithuania. In view of this fact, the part of the application regarding the prohibition to stand for election as President of the Republic was not accepted. In its decision of 21 October 1998 as to the admissibility in the case of Baškauskaitė v. Lithuania (application No. 41090/98), the European Commission of Human Rights took an analogous position.

Thus, contrary to what has been maintained by the petitioner, Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not imply any international obligations of the Republic of Lithuania that would be related to presidential elections.

Alongside, it needs to be noted that the Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, in respect of the compliance of which the petitioner also requests an investigation into the impugned legal regulation, is related to the implementation of the obligations of the Republic of Lithuania stemming from its membership in the European Union and not to international obligations stemming from the Convention for the Protection of Human Rights and Fundamental Freedoms as well as its protocols. Attention should also be drawn to the fact that the norms of the law of the European Union do not regulate presidential elections.

  1. It should be noted that, when assessing, in its ruling of 5 September 2012, the compliance of the legal regulation which was established, in response to the above-mentioned judgment of the European Court of Human Rights of 6 January 2011, in Paragraph 5 (wording of 22 March 2012) of Article 2 of the Republic of Lithuania’s Law on Presidential Elections, with the Constitution, the Constitutional Court consistently upheld its earlier legal position (set out in its ruling of 25 May 2004) that, under the Constitution, a person who has grossly violated the Constitution, breached the oath or committed such a crime by which they have also grossly violated the Constitution or breached the oath, and who, for the said reason, has been removed from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court, the President and a judge of the Court of Appeal, or whose mandate of a member of the Seimas has been revoked in accordance with the procedure for impeachment proceedings, may, under the Constitution, never stand for election as President of the Republic and a member of the Seimas, may never hold the office of a justice of the Constitutional Court, a justice of the Supreme Court, a judge of the Court of Appeal, a judge of another court, a member of the Government, and the State Controller, i.e. they may never hold the offices specified in the Constitution, the beginning of holding which is linked with taking the oath provided for in the Constitution.

The Constitutional Court also noted that the judgment of the European Court of Human Rights in itself could not serve as the constitutional basis for the reinterpretation (correction) of the official constitutional doctrine (provisions thereof) if such reinterpretation, in the absence of corresponding amendments to the Constitution, substantially changed the overall constitutional legal regulation (inter alia, the integrity of the constitutional institutes—impeachment, the oath and electoral right), also if it violated the system of the values enshrined in the Constitution and diminished the guarantees of the protection of the supremacy of the Constitution in the legal system.

The Constitutional Court also held that the provisions of Article 3 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, insofar as they imply the international obligation of the Republic of Lithuania to guarantee the right of a person whose mandate of a member of the Seimas has been revoked, in accordance with the procedure for impeachment proceedings, for a gross violation of the Constitution or a breach of the oath, as well as of a person who has been removed, in accordance with the procedure for impeachment proceedings, for a gross violation of the Constitution or a breach of the oath, from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court or the President and a judge of the Court of Appeal, to be elected as a member of the Seimas, were incompatible with the provisions of the Constitution, inter alia, the provisions of Paragraph 2 of Article 59 and Article 74 thereof; an obligation stems from Paragraph 1 of Article 135 of the Constitution for the Republic of Lithuania to remove the said incompatibility by adopting (an) appropriate amendment(s) to the Constitution.

In the context of the petitioner’s petition, it should also be noted that the prohibition which stems from the Constitution to stand for election as President of the Republic for a person who has grossly violated the Constitution, breached the oath and who, for the said reason, has been removed from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court, the President and a judge of the Court of Appeal or whose mandate of a member of the Seimas has been revoked in accordance with the procedure for impeachment proceedings, might also be renounced only after the Constitution is changed accordingly.

  1. As mentioned before, by means of its ruling of 25 May 2004, the Constitutional Court ruled the legal regulation which is established in the Law on Presidential Elections and under which a person who has grossly violated the Constitution or breached the oath and who, for the said reason, has been removed from office or lost their mandate of a member of the Seimas in accordance with the procedure for the impeachment proceedings may not stand for election, inter alia, as President of the Republic, was not in conflict with the Constitution; this ruling of the Constitutional Court is still in force.

Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the fact that the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue given by the Constitutional Court is still in force constitutes a ground to refuse to consider this petition.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 3 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition, which is set out in the 18 March 2014 resolution (No. XII-790) of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the provision of Paragraph 2 of Article 2 of the Republic of Lithuania’s Law on Presidential Elections (wording of 7 November 2013) to the effect that a person who has grossly violated the Constitution of the Republic of Lithuania or breached the oath and who has been removed from office or whose mandate of a member of the Seimas has been revoked by the Seimas in accordance with the procedure for the impeachment proceedings may not stand for election as President of the Republic, is not in conflict with Article 1 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania, Article 2 of the Republic of Lithuania’s Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, and the constitutional principle of a state under the rule of law.

This decision of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                                    Toma Birmontienė
                                                                                                        Pranas Kuconis
                                                                                                        Gediminas Mesonis
                                                                                                        Vytas Milius
                                                                                                        Ramutė Ruškytė
                                                                                                        Algirdas Taminskas
                                                                                                        Romualdas Kęstutis Urbaitis
                                                                                                        Dainius Žalimas