Lt

On the prohibition for a person removed from office under the impeachment procedure to stand in elections for a member of the Seimas

Case No. 8/2012

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 5 (WORDING OF 22 MARCH 2012) OF ARTICLE 2 OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO THE SEIMAS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 5 September 2012

Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of a group of Members of the Seimas of the Republic of Lithuania, a petitioner, who were Vytenis Povilas Andriukaitis and Julius Sabatauskas, Members of the Seimas,

in the presence of the representative of the Seimas, the party concerned, who was Remigijus Žemaitaitis, a Member 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 23 August 2012, in a public Court hearing heard constitutional justice case No. 8/2012 subsequent to the petition of a group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraph 5 (wording of 22 March 2012) of Article 2 of the Republic of Lithuania Law on Elections to the Seimas is not in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 74, Paragraphs 1 and 2 of Article 107 of the Constitution of the Republic of Lithuania and the constitutional principle of a sate under the rule of law.

The Constitutional Court

has established:

I

The petition of a group of Members of the Seimas, the petitioner, requesting to investigate the compliance of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas with the Constitution is substantiated by the following arguments.

  1. According to the constitutional principle of a state under the rule of law, the law-making subjects may issue legal acts only without exceeding their powers. The consistency and inner harmony of the legal system must be ensured, legal acts may not contain any provisions that regulate the same social relations differently at the same time. One must heed the hierarchy of legal acts due to which it is prohibited that legal acts of lower power establish the legal regulation competing with or denying a legal regulation established by legal acts of superior legal power. One of essential elements of the constitutional principle of a state under the rule of law is the requirement that one should not apply a legal act which is in conflict with a legal act of higher power.

In its ruling of 25 May 2004, the Constitutional Court held that “the Constitution also consolidates the legal regulation, where a person, whose mandate of a member of the Seimas has been revoked according to the procedure for impeachment proceedings for gross violation of the Constitution and a breach of the oath, or where a person has been removed from the office of the President of the Republic <…> for gross violation of the Constitution and a breach of the oath, under the Constitution, may never be elected President of the Republic, a Member of the Seimas <…> i.e. may not hold the office established in the Constitution, the beginning of holding of which, according to the Constitution, is linked with taking the oath set forth in the Constitution”. Thus, the impugned provision of the Law on Elections to the Seimas whereby a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings may not stand in elections for a Member of the Seimas, provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas, is in conflict with the constitutional principle of a state under the rule of law and the official constitutional doctrine on impeachment.

  1. While invoking the provisions of the official constitutional doctrine on impeachment formulated in the Constitutional Court ruling of 25 May 2004, whereby the removal of the President of the Republic, as well as of any other person indicated in Article 74 of the Constitution, who has breached the oath and grossly violated the Constitution, from office according to the procedure for impeachment proceedings, is not an end in itself, and that the purpose of the constitutional institute of impeachment is not only a one-time removal of such persons from office, but it is much broader: its purpose is to prevent the persons who have grossly violated the Constitution and breached the oath from holding the office provided for in the Constitution, the beginning of which, according to the Constitution, is linked with taking the oath specified in the Constitution, the petitioner maintains that the impugned provision of the law is in conflict with Article 74 of the Constitution.
  2. Paragraph 2 of Article 5 of the Constitution prescribes that the scope of power shall be limited by the Constitution. It means that the Seimas as the issuer of laws and other legal acts is independent inasmuch as its powers are not limited by the Constitution. Thus, the Seimas is bound by the Constitution and valid rulings of the Constitutional Court. While establishing the impugned legal regulation, the Seimas exceeded the powers established to it in the Constitution.
  3. Paragraph 1 of Article 6 of the Constitution prescribes that the Constitution is an integral and directly applicable act. The petitioner maintains that the principle of integrity of the Constitution implies that at the junction of the values safeguarded by the Constitution one must come to decisions which ensure that not a single of the said values is denied or unreasonably limited. The principles and norms of the Constitution comprise a harmonious system, therefore it is impossible to construe certain principles and norms of the Constitution by denying the essence of the other principles and norms. Thus, the legislator may not establish the legal regulation which would restrict or deny an opportunity to directly apply the Constitution. The Seimas, having established the impugned legal regulation without changing the existing constitutional regulation on impeachment, grounded its decision on the fact that it was allowed to do so by the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention), which, under Paragraph 3 of Article 138 of the Constitution, is a constituent part of the legal system of the Republic of Lithuania. According to the petitioner, such interpretation of the valid norms of the Constitution violates the constitutional principle of the hierarchy of legal acts and harmony of the legal system, as well as the requirements established for the legislator in Paragraph 1 of Article 6 of the Constitution.
  4. Paragraph 1 of Article 7 of the Constitution provides that any law or other act which is contrary to the Constitution shall be invalid. The aforesaid Constitutional Court ruling of 25 May 2004 recognised the provision “a person, who has been removed from office or his mandate of the Seimas member has been revoked by the Seimas in accordance with the procedure for impeachment proceedings, may not be elected President of the Republic if less than 5 years have elapsed since his removal from office or the revocation of his mandate of the Seimas member” (wording of 4 May 2004) of the Law on Presidential Elections of the Republic of Lithuania as being in conflict with the Constitution. According to the existing constitutional regulation, the requirements raised for a person so that he would be eligible to stand in elections for a Member of the Seimas and the President of the Republic are related, therefore, a person who breached the oath and grossly violated the Constitution, and who was consequently removed from office in accordance with the procedure for impeachment proceedings may never stand in elections for the Present of the Republic or a Member of the Seimas as long as the Constitution has not been amended or supplemented. Being aware of that and paying no heed to it, the Seimas adopted the impugned provision of the Law on Elections to the Seimas, whereby Paragraph 1 of Article 7 of the Constitution is violated.
  5. While taking account of the fact that the impugned provision of the law is not in line with the aforesaid doctrine, formed in the Constitutional Court ruling of 25 May 2004, whereby a person who grossly violated the Constitution or breached the oath may not stand inter alia in elections for a Member of the Seimas, this law is in conflict with Paragraph 1 of Article 107 of the Constitution, under which inter alia an act (or part thereof) of the Seimas may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, and with Paragraph 2 of the same article, under which the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal. It needs to be emphasised that, under the Constitution, the legal power of the Constitutional Court may not be overruled by the legislator when he adopts a law entrenching the same legal norm or analogous to the one that was recognised to be in conflict with the Constitution.

II

  1. In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, who was R. Žemaitaitis, a Member of the Seimas.
  2. According to the representative of the party concerned, the disputed provision of the Republic of Lithuania Law on Amending Article 2 of the Law on Elections to the Seimas is not in conflict with the Constitution. His opinion is grounded on the following arguments.

2.1. The disputed law was adopted while implementing the 6 January 2011 judgment of the European Court of Human Rights in the case Paksas v. Lithuania in which it was held that the legal regulation prohibiting Rolandas Paksas from standing for election to the Seimas is disproportionate with respect to Article 3 of Protocol No. 1 to the Convention. The Seimas, while carrying out the international commitments of the Republic of Lithuania, had to consolidate restitutio in integrum, i.e. to restore the situation that had been prior to the violation of human rights recognised by the European Court of Human Rights.

2.2. The Preamble to the Constitution consolidates the striving for an open, just, and harmonious civil society and state under the rule of law, the imperative of responsible governance and the constitutional principle of a state under the rule of law; Article 18 and Paragraph 3 of Article 138 of the Constitution express the Nation’s trust in the Convention, the International Covenant on Civil and Political Rights and Article 2 of the Treaty on the European Union. The aforesaid provisions of the Constitution demand that the Constitution be interpreted in a manner eliminating any conflict with the Convention, the International Covenant on Civil and Political Rights and Article 2 of the Treaty on the European Union.

2.3. The Seimas, while implementing the said judgment of the European Court of Human Rights, had to follow also the UN Human Rights Committee acts (documents) specified by the representative of the party concerned. According to the representative of the Seimas, if Paragraph 2 of Article 56 of the Constitution established expressis verbis the impugned prohibition to stand for election to the Seimas, it would be disproportionate according to the acts of the UN Human Rights Committee, however, it is possible to implement the proportionality principle entrenched in the Convention by adopting a law and that was done—a prohibition for a four-year period was established for a person, who was removed from office by way of impeachment, to stand in elections for a Member of the Seimas.

2.4. According to the representative of the party concerned, the petitioner, while referring to Item 9.4 of Chapter III of the reasoning part of the Constitutional Court ruling of 14 March 2006, where the said item is not in line with EU law and is not applicable, makes a legal error in the statement that the national Constitution enjoys superiority in cases of collision with the Convention, the International Covenant on Civil and Political Rights and the Treaty on the European Union. Article 2 of the Treaty on the European Union demands that the Convention and the International Covenant on Civil and Political Rights be applied directly in the territory of the Republic of Lithuania even when the latter are in conflict with the national constitution. Their direct application and absolute superiority is a value protected under Article 2 of the Treaty on the European Union. While referring to Item 3 of the 17 December 1970 judgment of the Court of Justice of the European Communities in the case of Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle fűr Getreide und Futtermittel (case No. 11-70), he maintains that the said court presented the construction whereby European law enjoys superiority in cases of collision between European law and the national constitution.

2.5. The representative of the Seimas also relates the adoption of the Law on Amending Article 2 of the Law on Elections to the Seimas with the implementation of the Convention also in the aspect that, under Items 25 and 26 of the 29 November 1991 judgment of the European Court of Human Rights in the case of Vermeire v. Belgium (application No. 12849/87), the Convention as construed by the said court in its judgments, must, according to the representative of the Seimas, the party concerned, be applied directly when its requirements are sufficiently precise and that the application of the Convention may not be suspended. According to the representative of the Seimas, the party concerned, Items 110–112 of the 6 January 2011 judgment of the European Court of Human Rights in the case of Paksas v. Lithuania are sufficiently precise.

  1. In case if, according to the assessment of the Constitutional Court, the impugned provision of the Law on Amending Article 2 of the Law on Elections to the Seimas were in conflict with the Constitution, the representative of the party concerned requests to apply to the Court of Justice of the European Union requesting for preliminary rulings on the direct application of the Convention and the International Covenant on Civil and Political Rights and on the construction of the relation to the membership in the European Union under Article 2 of the Treaty on the European Union.

III

At the Constitutional Court hearing, the representatives of the group of Members of the Seimas, the petitioner, who were the Members of the Seimas V. P. Andriukaitis, A. Burba and A. Salamakinas virtually reiterated the arguments set forth in the petition of the petitioner, presented additional explanations and answered the questions.

At the Constitutional Court hearing, the representative of the Seimas, the party concerned, who was R. Žemaitaitis, a Member of the Seimas, virtually reiterated the arguments set forth in his written explanations, presented additional explanations and answered the questions.

The Constitutional Court

holds that:

I

  1. The group of Members of the Seimas, the petitioner, requests to investigate whether Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, in which it is prescribed that a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings may not stand in elections for a Member of the Seimas, provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas, is not in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 74 and Paragraphs 1 and 2 of Article 107 of the Constitution and the constitutional principle of a state under the rule of law.
  2. On 9 July 1992, the Supreme Council-Reconstituent Seimas of the Republic of Lithuania adopted the Republic of Lithuania Law on Elections to the Seimas. This law has been amended and/or supplemented more than once, inter alia by the Republic of Lithuania Law on Amending the Law on Elections to the Seimas adopted by the Seimas on 18 July 2000, Article 1 whereof amended the Law on Elections to the Seimas (wording of 9 July 1992 with subsequent amendments and supplements) and set it forth in a new wording. This law did not include the provision prohibiting a person, who has been removed from office or whose mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings, from standing in elections for a Member of the Seimas.
  3. On 15 July 2004, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 2 and 88 of the Law on Elections to the Seimas which came into force on 3 August 2004. Paragraph 1 of Article 1 of this law supplemented Article 2 (wording of 20 June 2002) of the Law on Elections to the Seimas (wording of 18 July 2000) with a new Paragraph 5 which prescribed: “A person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings may not stand in elections for a Member of the Seimas.”

Thus, Paragraph 5 (wording of 15 July 2004) of Article 2 of the Law on Elections to the Seimas enshrined the following provisions:

1) a prohibition is established for a person to stand in elections for a Member of the Seimas if he has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings;

2) it is established that the said prohibition applies to all the persons, who are specified in Article 74 of the Constitution and who have been removed by the Seimas from office, or whose mandate of a Member of the Seimas has been revoked by it, in case of existence of any basis established in Article 74 of the Constitution: a gross violation of the Constitution, a breach of the oath or if it transpires that a crime has been committed.

  1. It is obvious from the explanatory note to the Draft Law on Amending and Supplementing Articles 2 and 88 of the Law on Elections to the Seimas that it was prepared while taking account of the Constitutional Court Ruling “On the compliance of Article 11 (wording of 4 May 2004) and Paragraph 2 (wording of 4 May 2004) of Article 2 of the Republic of Lithuania Law on Presidential Elections with the Constitution of the Republic of Lithuania” of 25 May 2004.
  2. In this context it needs to be noted that Paragraph 2 (wording of 4 may 2004) of Article 2 of the Law on Presidential Elections prescribed: “A person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings, may not stand in elections for President of the Republic if less than 5 years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas.”

On 25 May 2004, the Constitutional Court adopted the Ruling “On the compliance of Article 11 (wording of 4 May 2004) and Paragraph 2 (wording of 4 May 2004) of Article 2 of the Republic of Lithuania Law on Presidential Elections with the Constitution of the Republic of Lithuania” in which it recognised that:

1) Paragraph 2 (wording of 4 May 2004) of Article 2 of the Law on Presidential Elections, which establishes that a person, who has been removed from office or his mandate of a member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings, may not stand in elections for President of the Republic, except the provision that “if less than 5 years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas”, and the provision that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime by which the Constitution has not been grossly violated or the oath has not been breached, is not in conflict with the Constitution;

2) the provision of Paragraph 2 (wording of 4 May 2004) of Article 2 of the Law on Presidential Elections, which reads “if less than 5 years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas” is in conflict with Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of Article 82, Paragraph 2 of Article 104, and Paragraph 6 of Article 112 of the Constitution, Article 5 of the Law “On the Procedure of the Entry into Effect of the Constitution of the Republic of Lithuania”, as well as the constitutional principle of a state under the rule of law;

3) Paragraph 2 (wording of 4 May 2004) of Article 2 of the Law on Presidential Elections insofar as it provides that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime by which the Constitution has not been grossly violated or the oath has not been breached may not stand in elections for President of the Republic, is in conflict with Paragraph 2 of Article 34, Paragraph 2 of Article 56, Article 74, and Paragraph 1 of Article 78 of the Constitution.

  1. On 22 March 2012, the Seimas adopted the Republic of Lithuania Law on Amending Article 2 of the Law on Elections to the Seimas which came into force on 7 April 2012, which amended Paragraph 5 (wording of 15 July 2004) of Article 2 of the Law on Elections to the Seimas.

Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas prescribes: “A person, who has been removed from office or his mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings, may not stand in elections for a Member of the Seimas, provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas.”

Thus, Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas enshrined the following provisions:

1) a prohibition is established for a person to stand in elections for a Member of the Seimas if he has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas;

2) it is established that the said prohibition applies to all the persons, who are specified in Article 74 of the Constitution and who have been removed by the Seimas from office, or whose mandate of a Member of the Seimas has been revoked by it, in case of existence of any basis established in Article 74 of the Constitution: a gross violation of the Constitution, a breach of the oath or if it transpires that a crime has been committed.

  1. While summing it up, it needs to be noted that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas establishes a term (four years from the entry into force of the decision to remove a person from office or to revoke the mandate of a Member of the Seimas), upon expiration whereof, the person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings, may stand in elections for a Member of the Seimas.
  2. It is obvious from the explanatory note to the Draft Law on Amending Article 2 of the Law on Elections to the Seimas that it was prepared while reacting to the judgment of the Grand Chamber of the European Court of Human Rights in the case of Paksas v. Lithuania (application No. 34932/04) of 6 January 2011. By this judgment, the European Court of Human Rights, in particular taking account of the permanent and irreversible prohibition for the applicant to stand in elections to the parliament, recognised that this restriction was disproportionate and that Article 3 of Protocol No. 1 of the Convention was violated.
  3. Having compared the legal regulation impugned by the petitioner established in Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas with one established in Paragraph 5 (wording of 15 July 2004) of Article 2 of this law, it is obvious that they differ in a way that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas establishes the period of prohibition to stand in elections for a Member of the Seimas, i.e. a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings may not stand in elections for a Member of the Seimas, provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas.

II

  1. It has been mentioned that, on 25 May 2004, the Constitutional Court adopted the Ruling “On the compliance of Article 11 (wording of 4 May 2004) and Paragraph 2 (wording of 4 May 2004) of Article 2 of the Republic of Lithuania Law on Presidential Elections with the Constitution of the Republic of Lithuania”.
  2. The legal position of the Constitutional Court (ratio decidendi) in corresponding constitutional justice cases has the significance of the precedent (Constitutional Court rulings of 22 October 2007, 9 February 2010 and 22 December 2011). The Constitutional Court has held more than once that the Constitutional Court is bound by the precedents that it itself has created and by the official constitutional doctrine that it itself has formed, which substantiates those precedents (Constitutional Court ruling of 28 March 2006, decision of 21 November 2006, rulings of 22 October 2007, 24 October 2007, 20 February 2008, 6 January 2011 and 22 December 2011). The Constitutional Court, referring to its already formed official constitutional doctrine and precedents, must ensure the continuity of the constitutional jurisprudence (its consistency and non-discrepancy) as well as the predictability of its decisions (Constitutional Court ruling of 28 March 2006, decision of 21 November 2006, rulings of 22 October 2007 and 24 October 2007). It may be possible to deviate from the Constitutional Court precedents created while adopting decisions in cases of constitutional justice and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and reasoned; equally, the official constitutional doctrinal provisions on which the precedents of the Constitutional Court are based may not be reinterpreted so that the official constitutional doctrine would be corrected unless it is unavoidably and objectively necessary, constitutionally grounded and reasoned (Constitutional Court ruling of 28 March 2006, decision of 21 November 2006, rulings of 22 October 2007, 24 October 2007, 20 February 2008 and 6 January 2011); any change of the precedents of the Constitutional Court or correction of the official constitutional doctrine may not be determined by accidental (in the aspect of law) factors (for instance, the correction of the official constitutional doctrine may not be determined only by a change in the composition of the Constitutional Court) (Constitutional Court ruling of 28 March 2006, decision of 21 November 2006, rulings of 22 October 2007 and 24 October 2007).

The Constitutional Court has noted that the said necessity to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected may be determined only by the circumstances as the necessity to increase possibilities for implementing the innate and acquired rights of persons and their legitimate interests, the necessity to better defend and protect the values enshrined in the Constitution, the need to create better conditions in order to reach the aims of the Lithuanian Nation declared in the Constitution, on which the Constitution itself is based, the necessity to expand the possibilities of the constitutional control in this country in order to guarantee constitutional justice and to ensure that no legal act (part thereof) that is in conflict with the legal acts of higher power would have the immunity from being removed from the legal system (Constitutional Court ruling of 28 March 2006, decisions of 8 August 2006 and 21 November 2006, rulings of 22 October 2007 and 24 October 2007).

It is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine (provisions thereof) so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, the protection guarantees of the supremacy of the Constitution in the legal system are reduced, the concept of the Constitution as a single act and harmonious system is denied, the guarantees of rights and freedoms of the person entrenched in the Constitution are reduced and the model of separation of powers enshrined in the Constitution is changed. Every case of such reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court (Constitutional Court ruling of 28 March 2006, decisions of 8 August 2006 and 21 November 2006 and ruling of 24 October 2007).

  1. In the Constitutional Court ruling of 25 May 2004, adopted in the constitutional justice case concerning the compliance of the provision of the Law on Presidential Elections with the Constitution, while disclosing the constitutional concept of impeachment, it is noted:

– the Constitution consolidates such an organisation of institutions executing state power and such a procedure for their formation where all the institutions executing state power—the Seimas, the President of the Republic, the Government, the Judiciary, as well as other state institutions—are formed only from the citizens who without reservations obey the Constitution adopted by the Nation and who, while in office, unconditionally follow the Constitution, law and the interests of the Nation and the State of Lithuania;

– the state officials must enjoy the trust of the citizens—the state community, however, in order that the citizens—the state community—could reasonably trust the state officials, that it would be possible to ascertain that all the state institutions and all the state officials follow the Constitution as well as law and obey them, while those who do not obey the Constitution and law would not hold the office for which the trust of the citizens—the state community—is required, a public democratic control over the activity of the state officials and their accountability to the society, which comprises inter alia a possibility of removing from office the state officials who violate the Constitution and law, who bring their personal interests or the interests of the group above the interests of society, or who discredit state authority by their actions, is needed;

– one of the forms of the public democratic control over the activity of the aforesaid state officials is the constitutional institute of impeachment: under Paragraph 74 of the Constitution, certain top officials of state power—the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court and the President and judges of the Court of Appeal—for gross violation of the Constitution, a breach of the oath or if it transpires that a crime has been committed, may be removed from office under procedure for impeachment proceedings, and their mandate of a Member of the Seimas may also be revoked under procedure for impeachment proceedings;

– the application of an institute of impeachment—a special parliamentary procedure and the constitutional sanction of removal from office, which are entrenched in the Constitution, in respect of the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court and the President and judges of the Court of Appeal, is one of the measures of self-protection of the state community, the civil Nation, a way of its own defence from the aforesaid top officials of state power who ignore the Constitution and law, in a manner when they are prohibited from holding certain office, as they do not fulfil their obligation unconditionally to follow the Constitution and law, follow the interests of the Nation and the State of Lithuania, and who have disgraced state authority by their actions.

  1. While considering the constitutional justice case concerning the compliance, with the Constitution, of the provision of the Law on Presidential Elections whereby a person could not stand in elections for the President of the Republic if less than 5 years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas (Constitutional Court ruling of 25 May 2004), the Constitutional Court inter alia noted that the oath of Members of the Seimas, members of the Government, justices of the Constitutional Court, judges of other courts and the State Controller, as well as the oath of the President of the Republic, is not a mere formal or symbolic act; in view of the fact that the institute of the oath of the aforementioned state officials and the content of their oath are established in the Constitution, the oath taken by the said persons bears the constitutional meaning and gives rise to constitutional legal effects; the act of the oath of the aforesaid state officials is constitutionally legally significant also for the reason that, when taking the oath, the aforementioned persons publicly and solemnly accept an obligation to act in accordance with the obligations of the oath; their constitutional obligation to act only in accordance with the obligations of the oath and to breach the oath under no circumstances emerges from the moment of taking the oath.

After disclosing the constitutional legal meaning of the oath of the President of the Republic, in its ruling of 25 May 2004 the Constitutional Court held:

– the Constitution does not provide that upon a lapse of certain period of time the President of the Republic whose actions were recognised by the Constitutional Court as those by which the Constitution was grossly violated, and he himself was recognised as the one who has breached the oath and who has been removed from office by the Seimas for a breach of the oath and a gross violation of the Constitution, might be treated as the one who has not breached the oath or grossly violated the Constitution;

– a person who was elected as the President of the Republic, who took the oath of the President to the Nation and who subsequently breached it and thus grossly violated the Constitution, and who was, under procedure for impeachment proceedings, removed from office by the Seimas, the representation of the Nation, may not, under the Constitution, take an oath to the Nation once again, as there would always exist a reasonable doubt, which would never disappear, with regard to the certainty and reliability of his repeatedly taken oath, and thus with regard to the fact whether the person who takes the oath will really perform his duties of the President of the Republic in the manner prescribed by the oath to the Nation and whether this person will not breach the oath to the Nation again, in other words, whether the oath repeatedly taken by this person to the Nation will not be fictitious.

While taking account of the said fact that, under the Constitution, not only the President of the Republic, the Head of State, but also Members of the Seimas, members of the Government, justices of the Constitutional Court, judges of other courts and the State Controller, must take an oath, in the ruling of 25 May 2004 the Constitutional Court also held:

“The Constitution consolidates such legal regulation where, under the Constitution, a person whose mandate of a Member of the Seimas has been revoked under the procedure for impeachment proceedings for the gross violation of the Constitution and breach of the oath, or a person who 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 or the President and a judge of the Court of Appeal for the gross violation of the Constitution and a breach of the oath, may never stand in elections for the 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 at another court, a member of the Government or the State Controller, i.e. such a person may not hold the office established in the Constitution the beginning of holding of which, according to the Constitution, is linked with taking the oath set forth in the Constitution. A different construction of the provisions of the Constitution would make the institute of constitutional impeachment for gross violation of the Constitution and a breach of the oath legally meaningless and pointless, it would be incompatible with the essence and purpose of the constitutional liability for a breach of the oath and gross violation of the Constitution, with the essence and purpose of the oath established in the Constitution as a constitutional value, as well as with the requirement, which emerges from the overall constitutional legal regulation, that all the institutions executing state power and other state institutions be comprised only from the citizens who without reservations obey the Constitution adopted by the Nation and who, while in office, unconditionally follow the Constitution, law and the interests of the Nation and the State of Lithuania. A different construction of the provisions of the Constitution would be inconsistent with both the constitutional principle of a state under the rule of law and the constitutional imperative of an open, just and harmonious civil society.”

In the aforesaid ruling the Constitutional Court emphasised that the removal of the President of the Republic from office, as well as of any other person indicated in Article 74 of the Constitution, who has breached the oath and grossly violated the Constitution, under procedure for impeachment proceedings, is not an end in itself; the purpose of the constitutional institute of impeachment is not only a one-time removal of such persons from office, but it is much broader: its purpose is to prevent the persons who have grossly violated the Constitution and breached the oath from holding the office provided for in the Constitution, the beginning of which, according to the Constitution, is linked with taking the oath specified in the Constitution; the content of the constitutional sanctions (constitutional liability) applied under procedure for impeachment proceedings is composed both of the removal of a person, who has grossly violated the Constitution and breached the oath, from office, and also of the prohibition stemming therefrom for such a person to hold any office provided for in the Constitution, which can be taken only after the person takes the oath provided for in the Constitution.

  1. In the context of the constitutional justice case at issue it needs to be noted that the constitutional provision under which a person whose mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, also a person who has been removed under procedure for impeachment proceedings from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court or the President and a judge of the Court of Appeal for a gross violation of the Constitution and a breach of the oath, may never stand in elections for a Member of the Seimas is an implicit one. The said provision stems from the overall constitutional legal regulation, inter alia from the constitutional institute of the oath, entrenched in inter alia Article 59 of the Constitution, which does not provide that upon a lapse of certain period of time a person who has been removed from office or whose mandate of a Member of the Seimas has been revoked by the Seimas for a breach of the oath and a gross violation of the Constitution might be treated as the one who has not breached the oath or grossly violated the Constitution and could take the oath of a Member of the Seimas, as well as from the institute of impeachment entrenched in Article 74 of the Constitution. The constitutional purpose of the institute of impeachment is to prevent the persons who have grossly violated the Constitution and breached the oath from holding the office provided for in the Constitution, the beginning of which, according to the Constitution, is linked with taking the oath specified in the Constitution, thus, ensuring that all the institutions executing state power as well as other state institutions would be formed only from the citizens who without reservations obey the Constitution adopted by the Nation and who, while in office, unconditionally follow the Constitution, law and the interests of the Nation and the State of Lithuania. Taking account of the said concept of the constitutional institutes of the oath and impeachment, one is to note that electing as a Member of the Seimas a person whose mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, as well as a person who has been removed under procedure for impeachment proceedings for a gross violation of the Constitution and 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, would be, under the Constitution, meaningless, as, under Paragraph 2 of Article 59 of the Constitution, such a person could not take the oath to be faithful to the Republic of Lithuania and acquire the rights of a representative of the Nation.

In the context of the constitutional justice case at issue it also needs to be noted that the constitutional institutes of impeachment, the oath and electoral right are closely interrelated and integrated; the change of any of the elements of these institutes would result in the change of the content of other related institutes, i.e. the system of values entrenched in the aforementioned constitutional institutes would be changed.

  1. After noting in the aforesaid ruling of 25 May 2004 that one of the grounds established in Article 74 of the Constitution, under which a certain official specified in Article 74 of the Constitution may be removed from office or his mandate of a Member of the Seimas may be revoked, is “if it transpires that a crime has been committed”, the Constitutional Court held that:

– the commission of a crime in itself does not mean that a person has alongside violated the Constitution, or breached the oath, or that the person in his activity did not follow the Constitution, the interests of the Nation and the State of Lithuania, etc.; some crimes may even be of a type not directly related with a breach of the oath provided for in the Constitution or with a gross violation of the Constitution;

– it emerges from the provisions of Article 74 and Paragraph 2 of Article 56 of the Constitution that the crime by which the Constitution has not been grossly violated and the oath has not been breached does not cause the same constitutional legal effects as the crime by which the Constitution is grossly violated or the oath is breached;

– Paragraph 2 of Article 56 of the Constitution, under which a person who has fulfilled punishment imposed by a court judgement may stand in elections for a Member of the Seimas, means that the Constitution does not provide that a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas; moreover, while making the aforementioned exception, the Constitution expressis verbis allows to elect such a person Member of the Seimas.

  1. A fundamental requirement of a democratic state under the rule of law is the principle of the supremacy of the Constitution entrenched in Paragraph 1 of Article 7 of the Constitution, which provides that any law or other act inconsistent with the Constitution shall be invalid. This principle in various aspects is also entrenched in other articles of the Constitution, inter alia Paragraph 2 of Article 5, which stipulates that the powers of the state authority shall be limited by the Constitution, also in Paragraph 1 of Article 6, which provides that the Constitution shall be an integral and directly applicable act (Constitutional Court rulings of 24 December 2002, 29 October 2003, 5 March 2004, 20 March 2007 and 29 March 2012). The principle of the supremacy of the Constitution means that the Constitution stands in the exceptional, highest, place in the hierarchy of legal acts; no legal act may be in conflict with the Constitution; no one is permitted to violate the Constitution; the constitutional order must be protected; the Constitution itself consolidates the mechanism permitting to determine whether legal acts (parts thereof) are not in conflict with the Constitution; in this respect, the principle of the supremacy of the Constitution, which is enshrined in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle upon which the entire Lithuanian legal system and the Constitution itself are based; violation of the principle of supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well (Constitutional Court rulings of 24 December 2002, 29 October 2003, 5 March 2004 and 20 March 2007 and the decision of 20 November 2009).
  2. The Constitution is an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held more than once that the principles and norms of the Constitution constitute a harmonious system, also that it is not permitted to construe any provision of the Constitution so that the content of any other constitutional provision might be distorted or denied, since thus the essence of the entire constitutional regulation would be distorted and the balance of the constitutional values would be disturbed.

In the Constitutional Court acts it has been held more than once that, under the Constitution, only the Constitutional Court enjoys the powers to officially construe the Constitution; it is the Constitutional Court that formulates the official constitutional doctrine: the provisions of the Constitution—its norms and principles—are construed in the acts of the Constitutional Court; the official constitutional doctrine inter alia discloses the content of various constitutional provisions, their interrelations, the balance of the constitutional values, and the essence of the constitutional legal regulation as a single whole. While officially construing the Constitution, the Constitutional Court must ensure the integrity of the Constitution entrenched in Paragraph 1 of Article 6 of the Constitution.

The powers of the Constitutional Court to officially construe the Constitution and to provide in its jurisprudence the official concept of the provisions of the Constitution arise from the Constitution itself: in order to be able to establish and adopt a decision whether the legal acts (parts thereof) being investigated are not in conflict with the legal acts of higher power, the Constitutional Court has the constitutional powers to officially construe both the legal acts under investigation and the said legal acts of higher power; a different construction of the powers of the Constitutional Court would deny the constitutional purpose of the Constitutional Court itself (Constitutional Court ruling of 6 June 2006 and decision of 3 May 2010).

In its jurisprudence the Constitutional Court has held more than once that, under the Constitution, all acts of the Constitutional Court in which the Constitution is construed, i.e. the official constitutional doctrine is formulated, by their content are also binding on law-making as well as law-applying institutions (officials) (Constitutional Court decision of 20 September 2005, rulings of 28 March 2006 and 6 June 2006 and decision of 14 October 2008). All law-making and law-applying subjects must pay heed to the official constitutional doctrine when they apply the Constitution, they may not construe the provisions of the Constitution differently from their construction in the acts of the Constitutional Court; otherwise, the constitutional principle that the Constitutional Court alone enjoys the powers to officially construe the Constitution would be violated, the supremacy of the Constitution would be disregarded and preconditions would be created for the appearance of inconsistencies in the legal system (Constitutional Court decision of 20 September 2005, rulings of 28 March 2006 and 22 December 2011).

  1. In the context of the constitutional justice case at issue it needs to be noted that, while construing the provisions of Paragraphs 1 and 2 of Article 107 of the Constitution, as well as the constitutional principle of a state under the rule of law, the Constitutional Court has held more than once that:

– the principle of a state under the rule of law, entrenched in the Constitution, implies the hierarchy of legal acts, wherein the Constitution occupies an exceptional place; in a state under the rule of law it is not allowed to establish by legal acts of lower power any such legal regulation that would compete with the legal regulation established in the legal acts of superior power, inter alia the Constitution itself;

– after the Constitutional Court recognises a law (part thereof) or other act (part thereof) of the Seimas, act (part thereof) of the President of the Republic, or act (part thereof) of the Government to be in conflict with the Constitution, the state institutions that had issued the corresponding act—the Seimas, the President of the Republic, and the Government—under the Constitution, are prohibited from repeatedly establishing the legal regulation that has been recognised to be in conflict with the Constitution, by adopting corresponding laws and other legal acts afterwards (Constitutional Court ruling of 30 May 2003 and decision of 8 August 2006);

– while adopting new, amending and/or supplementing the already adopted laws and other legal acts, all law-making subjects are bound by the jurisprudence of the Constitutional Court, inter alia the official constitutional doctrine—the official concept (official construction) of the provisions of the Constitution (norms and principles thereof) and other legal arguments set forth in the legal acts of the Constitutional Court—formulated therein (in the reasoning part of the acts of the Constitutional Court) (Constitutional Court rulings of 30 May 2003 and 19 January 2005, decision of 20 September 2005, ruling of 28 March 2006, decisions of 8 August 2006 and 1 February 2008, rulings of 13 May 2010 and 22 December 2011); the legislator, while passing new laws or amending and supplementing the valid ones, may not disregard the concept of the provisions of the Constitution and other legal arguments that are set forth in officially published and effective rulings of the Constitutional Court (Constitutional Court rulings of 19 January 2005 and 22 December 2011);

– the power of the Constitutional Court to recognise a legal act or part thereof as unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof (Constitutional Court rulings of 30 May 2003, 28 March 2006 and 6 June 2006, decisions of 8 August 2006 and 4 July 2008).

Paragraphs 1 and 2 of Article 107 of the Constitution inter alia give rise to a prohibition against repeatedly establishing by means of the later adopted laws and other legal acts any such legal regulation that is incompatible with the concept of the provisions of the Constitution set forth in the legal acts of the Constitutional Court. If the legislator, nonetheless, adopted a law whereby it disregards the said prohibition, such a law could not be a lawful ground for acquiring the corresponding rights or legal status. A different construction of Paragraphs 1 and 2 of Article 107 of the Constitution would not be in line with inter alia the principle of supremacy of the Constitution as well as the constitutional principles of separation of powers and a state under the rule of law. In addition, this would also be incompatible with the general principle of law ex injuria jus non oritur (illegal acts cannot create law).

III

  1. It has been mentioned that the Law on Amending Article 2 of the Law on Elections to the Seimas, which established the legal regulation impugned in the case at issue, was adopted while reacting to the judgment of the Grand Chamber of the European Court of Human Rights in the case of Paksas v. Lithuania (application No. 34932/04) of 6 January 2011, wherein the permanent and irreversible prohibition for a person, who was removed from office in accordance with the procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, to stand in elections to the Seimas was recognised disproportionate and violating the right, entrenched in Article 3 of Protocol No. 1 of the Convention, to stand as a candidate for the legislature. In the judgment it was noted that the aforesaid prohibition is set in constitutional stone (Item 110).

It has also been mentioned that the constitutional provision under which a person whose mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, also a person who has been removed under procedure for impeachment proceedings from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court or the President and a judge of the Court of Appeal for a gross violation of the Constitution and a breach of the oath, may never stand in elections for a Member of the Seimas is an implicit one and stems from the overall constitutional legal regulation, inter alia from the constitutional institute of the oath, entrenched in inter alia Article 59 of the Constitution, as well as from the institute of impeachment entrenched in Article 74 of the Constitution; electing as a Member of the Seimas a person whose mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, as well as a person who has been removed under procedure for impeachment proceedings for a gross violation of the Constitution and 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, would be, under the Constitution, meaningless, as, under Paragraph 2 of Article 59 of the Constitution, such a person could not take the oath to be faithful to the Republic of Lithuania and acquire the rights of a representative of the Nation.

Thus, the aforesaid judgment of the European Court of Human Rights means that the provisions of Article 3 of Protocol No. 1 of the Convention 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 under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, as well as a person who has been removed under procedure for impeachment proceedings for a gross violation of the Constitution and 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 stand in elections for a Member of the Seimas, are incompatible with the provisions of the Constitution, inter alia the provisions of Paragraph 2 of Article 59 and Article 74 thereof.

  1. The Convention and some of its protocols, inter alia Protocol No. 1 thereto, are international treaties of the Republic of Lithuania, which have been ratified by the Seimas and have come into force. The Convention was ratified by Article 1 of the Republic of Lithuania Law “On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Fourth, Seventh and Eleventh Protocols Thereof” which was adopted by the Seimas on 27 April 1995. With regard to the Republic of Lithuania this Convention came into force on 20 June 1995. Protocol No. 1 to the Convention was ratified by Article 1 of the Republic of Lithuania Law “On the Ratification of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and on Supplementing the Law ‘On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Fourth, Seventh and Eleventh Protocols Thereof’” which was adopted by the Seimas on 7 December 1995. With regard to the Republic of Lithuania Protocol No. 1 to the Convention came into force on 24 May 1996.

Under Article 1 of the Convention, the Republic of Lithuania must secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, whereas, under Paragraph 1 of Article 46 of the Convention, the Republic of Lithuania undertakes to abide by the final judgment of the European Court of Human Rights in any case to which it is a party; it also applies to the rights and freedoms entrenched in Protocol No. 1 to the Convention and to the judgments of the European Court of Human Rights in cases related to these rights and freedoms (under Article 5 of this protocol, Articles 1–4 thereof shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly). It needs to be emphasised that the Convention and protocols thereto were drafted inter alia on the grounds of the principle of sovereign equality of states; the system of the protection of human rights of the Convention is subsidiary with regard to the national legal systems.

In this context it needs to be noted that the main responsibility for effective implementation of the Convention and protocols thereto falls upon the states, the parties to the Convention and protocols thereto, therefore, they enjoy broad discretion to choose the ways and measures for the application and implementation of the Convention and protocols thereto, inter alia the execution of judgments of the European Court of Human Rights. However, such discretion is limited by the peculiarities (related to the established system of harmonisation of the national (domestic) and international law) of the legal systems of the states, inter alia their constitutions, as well as by the character of the human rights and freedoms guaranteed under the Convention and protocols thereto (inter alia the 15 January 2007 judgment of the Grand Chamber of the European Court of Human Rights in the case of Sisojeva and others v. Latvia (application No. 60654/00); the 18 January 2001 judgment in the case of Chapman v. The United Kingdom (application No. 27238/95).

It also needs to be noted that the European Court of Human Rights was set up to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and protocols thereto (Article 19 of the Convention); the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47 (Paragraph 1 of Article 32 of the Convention), i.e. it extends to issues of construction and application of the Convention and protocols thereto, which arise in the course of consideration of cases between states and individual petitions on violation of provisions of the Convention and protocols thereto and the rights and freedoms entrenched therein, also in the course of construction of judgments adopted by the European Court of Human Rights and in presenting consultative conclusions on legal issues of construction of provisions of the Convention and protocols thereto.

Thus, the European Court of Human Rights plays an additional role in the implementation of the Convention and protocols thereto; it does not replace the competence and jurisdiction of national courts, nor is it an appeal or cassation instance with regard to judgments of the latter. Even though the jurisprudence of the European Court of Human Rights, as a source for construction of law, is important also for construction and application of Lithuanian law, the jurisdiction of the said Court does not replace the powers of the Constitutional Court to officially construe the Constitution.

  1. It has been mentioned that the discretion of the states, the parties to the Convention and protocols thereto, to choose the ways and measures for the application and implementation of the Convention and protocols thereto, inter alia the execution of judgments of the European Court of Human Rights, is limited inter alia by the peculiarities (related to the established system of harmonisation of the national (domestic) and international law) of their constitutions. In this context it needs to be noted that in Lithuania the system of parallel adjustment of international and domestic law is applied which is based on the rule that international treaties are transformed in the legal system of a state (i.e. they are incorporated into it) (Constitutional Court rulings of 17 October 1995 and 18 December 1997). Under Paragraph 3 of Article 138 of the Constitution, international treaties ratified by the Seimas shall be a constituent part of the legal system of the Republic of Lithuania. While construing this provision of the Constitution, the Constitutional Court has held that it means that the international treaties ratified by the Seimas acquire the power of the law (Constitutional Court conclusion of 24 January 1995, rulings of 17 October 1995, 14 March 2006, decisions of 25 April 2002 and 7 April 2004). Thus, in the legal system of Lithuania the Convention has the power of the law (Constitutional Court ruling of 16 January 2007). Protocol No. 1 to the Convention has the power of the law as well.

It also needs to be noted that, as it has been held by the Constitutional Court, the doctrinal provision that the international treaties ratified by the Seimas acquire the power of the law cannot be construed as meaning that, purportedly, the Republic of Lithuania may disregard its international treaties, if a different legal regulation is established in its laws or constitutional laws from the one established by international treaties (Constitutional Court ruling of 14 March 2006). In addition, the principle is entrenched in the Constitution that in cases when a national legal act (it goes without saying, except the Constitution itself) establishes the legal regulation which competes with that established in an international treaty, then the international treaty is to be applied (Constitutional Court rulings of 14 March 2006 and 21 December 2006). Thus, in cases when the legal regulation entrenched in an international treaty ratified by the Seimas competes with the one established in the Constitution, the provisions of such an international treaty do not have priority with regard to their application.

  1. Consequently, in the course of implementation of international obligations of the Republic of Lithuania in domestic law, one must take account of the principle of superiority of the Constitution entrenched in Paragraph 1 of Article 7 thereof. As it has been emphasised by the Constitutional Court, the legal system of the Republic of Lithuania is grounded on the fact that any law or other legal act, as well as international treaties of the Republic of Lithuania, must not be in conflict the Constitution, since Paragraph 1 of Article 7 of the Constitution provides: “Any law or other act, which is contrary to the Constitution, shall be invalid.” In itself, this constitutional provision cannot invalidate a law or an international treaty, but it requires that the provisions thereof not contradict the provisions of the Constitution (Constitutional Court conclusion of 24 January 1995 and ruling of 17 October 1995); otherwise, the Republic of Lithuania would not be able to ensure legal defence of the rights of the parties of international treaties, which arise from those treaties, and this in its turn would hinder from fulfilling obligations according to the concluded international treaties (Constitutional Court ruling of 17 October 1995). It also applies to the Convention (and protocols thereto); otherwise, the Republic of Lithuania would not be able to ensure the legal defence of the rights and freedoms recognised by the Convention (Constitutional Court conclusion of 24 January 1995).
  2. It has been mentioned that it may be possible to deviate from the Constitutional Court precedents created while adopting decisions in cases of constitutional justice and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and reasoned; it is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine (provisions thereof) so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, the protection guarantees of the supremacy of the Constitution in the legal system are reduced and the concept of the Constitution as a single act and harmonious system is denied.

It has also been mentioned that the constitutional institutes of impeachment, the oath and electoral right are closely interrelated and integrated; the change of any element of these institutes would result in the change of the content of other related institutes, i.e. the system of values entrenched in all aforementioned constitutional institutes would be changed. The legal system of the Republic of Lithuania is grounded on the fact that any law or other legal act, as well as international treaties of the Republic of Lithuania, must not be in conflict the Constitution.

Consequently, in itself the judgment of the European Court of Human Rights may not serve as the constitutional basis for reinterpretation (correction) of the official constitutional doctrine (provisions thereof) if such reinterpretation, in the absence of corresponding amendments to the Constitution, changed the overall constitutional regulation (inter alia the integrity of the constitutional institutes—impeachment, the oath and electoral right) in essence, also if it disturbed the system of the values entrenched in the Constitution and diminished the guarantees of protection of the superiority of the Constitution in the legal system.

  1. On the other hand, it needs to be emphasised that respect to international law, i.e. the observance of international obligations undertaken on its own free will, respect to the universally recognised principles of international law (as well as the principle pacta sunt servanda) are a legal tradition and a constitutional principle of the restored independent State of Lithuania (Constitutional Court ruling of 14 March 2006). The Republic of Lithuania must follow the universally recognised principles and norms of international law inter alia under Paragraph 1 of Article 135 of the Constitution.

In the context of the constitutional justice case at issue it needs to be noted that from Paragraph 1 of Article 135 of the Constitution a duty arises for the Republic of Lithuania to remove the aforesaid incompatibility of the provisions of Article 3 of Protocol No. 1 of the Convention with the Constitution, inter alia the provisions of Paragraph 2 of Article 59 and Article 74 thereof. While taking account of the fact that, as mentioned, the legal system of Lithuania is grounded upon the principle of superiority of the Constitution, the adoption of the corresponding amendment(s) to the Constitution is the only way to remove this incompatibility.

IV

On the compliance of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 74 and Paragraphs 1 and 2 of Article 107 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The group of Members of the Seimas, the petitioner, requests to investigate whether Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas is not in conflict with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Article 74 and Paragraphs 1 and 2 of Article 107 of the Constitution and the constitutional principle of a state under the rule of law.
  2. The petitioner substantiates its doubt regarding the compliance of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas with the Constitution by the fact that, in its opinion, while adopting the impugned law, the Seimas did not follow the official constitutional doctrine set forth in the Constitutional Court ruling of 25 May 2004, which was adopted in the constitutional justice case regarding the provision of the Law on Presidential Elections, which is virtually analogous to the impugned provision of the Law on Elections to the Seimas. In the opinion of the petitioner, while establishing the same legal regulation that had already been recognised as anti-constitutional, the Seimas exceeded the powers of the Seimas which are established in the Constitution, it established, by means of a law, a legal regulation (which is different from the one established in the Constitution) of electing a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings, to the Seimas and it openly ignored the aforementioned ruling of the Constitutional Court and tried to overrule it by means of a law.
  3. It has been mentioned that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas prescribes: “A person, who has been removed from office or his mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings, may not stand in elections for a Member of the Seimas, provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas.”

It has also been mentioned that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas establishes a term (four years from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas), upon the expiry whereof, a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings, may stand in elections for a Member of the Seimas.

  1. As it has been held in the Constitutional Court ruling of 25 May 2004, which formulated the legal position (ratio decidendi) that has the significance of precedence and is binding upon the Constitutional Court, under the Constitution, a person, who grossly violated the Constitution, breached the oath, or committed the crime whereby the Constitution was also grossly violated and the oath was breached, and for the said reason who was removed, under procedure for impeachment proceedings, from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court, the President and a judge of the Court of Appeal, or whose mandate of a Member of the Seimas has been revoked, may, under the Constitution, never be elected President of the Republic, a Member of the Seimas, may never hold the office of a justice of the Constitutional Court, a justice of the Supreme Court, a judge of the Court of Appeal, a judge of another court, a member of the Government, the State Controller, i.e. he may never hold the offices established in the Constitution, the beginning of holding of which, according to the Constitution, are linked with taking of the oath provided for in the Constitution.

Thus, the legal regulation established in Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas is not in line with the requirement of the Constitution that a person, who grossly violated the Constitution and breached the oath, and for the said reason who was removed, under procedure for impeachment proceedings, from office or his mandate of a Member of the Seimas has been revoked under procedure for impeachment proceedings, would never stand in elections for a Member of the Seimas.

  1. It needs to be held that by the provision of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, under which a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings for a gross violation of the Constitution and a breach of the oath, may stand in elections for a Member of the Seimas provided that four years have elapsed, the following is violated: Paragraphs 2 and 3 of Article 59 of the Constitution which consolidate the essence and purpose of the oath of a Member or the Seimas; Article 5 of the Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania” which establishes the oath for the Member of the Seimas; Paragraph 1 of Article 82 of the Constitution which consolidates the essence and purpose of the oath of the President of the Republic; Paragraph 2 of Article 104 of the Constitution which consolidates the oath of the justice of the Constitutional Court; Paragraph 6 of Article 112 of the Constitution which consolidates the oath of a person appointed a judge; Article 74 of the Constitution which establishes the right of the Seimas to remove from office (under procedure for impeachment proceedings), for a gross violation of the Constitution and a breach of the oath, the President of the Republic, the President and justices of the Constitutional Court, the President and justice of the Supreme Court and the President and judges of the Court of Appeal, as well as to revoke the mandate of a Member of the Seimas; Paragraph 2 of Article 34 of the Constitution which prescribes that the right to be elected shall be established by the Constitution and by the election laws. By the specified provision of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas one also violates the constitutional principle of a state under the rule of law.
  2. It has been mentioned that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas inter alia prescribes that a prohibition for a person to stand in elections for a Member of the Seimas if he has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings provided that less than four years have elapsed from the entry into force of the decision to remove from office or to revoke the mandate of a Member of the Seimas applies to all the persons, who are specified in Article 74 of the Constitution and who have been removed by the Seimas from office, or whose mandate of a Member of the Seimas has been revoked by it, in case of existence of any basis established in Article 74 of the Constitution: a gross violation of the Constitution, a breach of the oath or if it transpires that a crime has been committed.

It has also been mentioned that commission of a crime in itself does not mean that a person also violated the Constitution or breached the oath; some crimes may also be of such nature that they do not interrelate directly with a breach of the oath which is provided in the Constitution or a gross violation of the Constitution.

Thus, under Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, also such a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings for the commission of such a crime, whereby one does not grossly violate the Constitution and does not breach the oath, may not stand in elections for a Member of the Seimas for a period of four years.

  1. As it has been mentioned, Paragraph 2 of Article 56 of the Constitution, under which a person who has fulfilled punishment imposed by a court judgement may stand in elections for a Member of the Seimas, means that the Constitution does not provide that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas; moreover, while making the aforementioned exception, the Constitution expressis verbis allows to elect such a person Member of the Seimas.

Thus, Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, under which also such a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings for the commission of such a crime, whereby one does not grossly violate the Constitution and does not breach the oath, may not stand in elections for a Member of the Seimas, establishes a different requirement (condition) for a person who may stand in elections for a Member of the Seimas from the one which is consolidated in the Constitution.

  1. It needs to be held that Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, insofar as it provides that a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings for the commission of such a crime, whereby one does not grossly violate the Constitution and does not breach the oath, may not stand in elections for a Member of the Seimas, is not in line with: Article 74 of the Constitution which establishes the right of the Seimas to remove from office (under procedure for impeachment proceedings), for a gross violation of the Constitution and a breach of the oath, the President of the Republic, the President and justices of the Constitutional Court, the President and justice of the Supreme Court and the President and judges of the Court of Appeal, as well as to revoke the mandate of a Member of the Seimas; Paragraph 2 of Article 56 of the Constitution, under which a persons, who has not fulfilled punishment imposed by a court judgement, may not stand in elections for a Member of the Seimas; Paragraph 2 of Article 34 of the Constitution which prescribes that the right to be elected shall be established by the Constitution and by the election laws.
  2. Taking account of the arguments set forth, one is to draw a conclusion that:

1) the provision of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, which reads “if less than four years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas” is in conflict with Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of Article 82, Paragraph 2 of Article 104, and Paragraph 6 of Article 112 of the Constitution, Article 5 of the Law “On the Procedure of the Entry into Force of the Constitution of the Republic of Lithuania”, as well as with the constitutional principle of a state under the rule of law;

2) Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, insofar as it provides that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas, is in conflict with Paragraph 2 of Article 34, Paragraph 2 of Article 56 and Article 74 of the Constitution.

  1. As it has been mentioned, in its ruling of 25 May 2004 the Constitutional Court held that, under the Constitution, a person, who grossly violated the Constitution, breached the oath, or committed the crime whereby the Constitution was also grossly violated and the oath was breached, and for the said reason who was removed, under procedure for impeachment proceedings, from the office of the President of the Republic, the President and a justice of the Constitutional Court, the President and a justice of the Supreme Court, the President and a judge of the Court of Appeal, or whose mandate of a Member of the Seimas has been revoked, may, under the Constitution, never be elected President of the Republic, a Member of the Seimas, may never hold the office of a justice of the Constitutional Court, a justice of the Supreme Court, a judge of the Court of Appeal, a judge of another court, a member of the Government, the State Controller, i.e. he may never hold the offices established in the Constitution, the beginning of holding of which, according to the Constitution, are linked with taking of the oath provided for in the Constitution.

It has been mentioned that the legal regulation enshrined in Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, inter alia means that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for a gross violation of the Constitution and a breach of the oath, may stand in elections for a Member of the Seimas provided that four years have elapsed, as well as that such a person who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure of impeachment proceedings for the commission of such a crime, whereby one does not grossly violate the Constitution and does not breach an oath, may not stand in elections for a Member of the Seimas.

In this Constitutional Court ruling it has been held that:

1) the provision of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, which reads “if less than four years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas” is in conflict with Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of Article 82, Paragraph 2 of Article 104, and Paragraph 6 of Article 112 of the Constitution, Article 5 of the Law “On the Procedure of the Entry into Force of the Constitution of the Republic of Lithuania”, as well as with the constitutional principle of a state under the rule of law;

2) Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, insofar as it provides that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas, is in conflict with Paragraph 2 of Article 34, Paragraph 2 of Article 56 and Article 74 of the Constitution.

Thus, it needs to be held that having established the aforementioned legal regulation in Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, whereby one ignores the concept of the constitutional liability for a gross violation of the Constitution and a breach of the oath which was disclosed in the Constitutional Court ruling of 25 March 2004 and disregards the fact that, under the Constitution, a person, who grossly violated the Constitution and breached the oath, and for the said reason who was removed, under procedure for impeachment proceedings, from the office held or whose mandate of a Member of the Seimas has been revoked, may never stand in elections for inter alia a Member of the Seimas, the legislator tried to overrule the power of the Constitutional Court ruling of 25 May 2004 and violated the prohibition, which stems from Paragraphs 1 and 2 of Article 107 of the Constitution, to repeatedly establish, by adopting corresponding laws and other legal acts afterwards, the legal regulation which is not in line with the concept of the provisions of the Constitution set forth in the ruling of the Constitutional Court, as well as with the principle of integrity of the Constitution which is consolidated in Paragraph 1 of Article 6 of the Constitution, the principle of supremacy of the Constitution which is consolidated in Paragraph 1 of Article 7 thereof, and exceeded its powers established in the Constitution and violated the constitutional principles of separation of powers and a state under the rule of law.

  1. Taking account of the arguments set forth, one is to draw a conclusion that:

1) the provision of Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, which reads “if less than four years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas” is in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7 and Paragraphs 1 and 2 of Article 107 of the Constitution, as well as with the constitutional principle of a state under the rule of law;

2) Paragraph 5 (wording of 22 March 2012) of Article 2 of the Law on Elections to the Seimas, insofar as it provides that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas, is in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7 and Paragraphs 1 and 2 of Article 107 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

  1. To recognise that the provision of Paragraph 5 (wording of 22 March 2012, Official Gazette Valstybės žinios, 2012, No. 42-2042) of Article 2 of the Republic of Lithuania Law on Elections to the Seimas, which reads “if less than four years have elapsed since his removal from office or the revocation of his mandate of a Member of the Seimas” is in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 59, Article 74, Paragraph 1 of Article 82, Paragraph 2 of Article 104, Paragraphs 1 and 2 of Article 107 and Paragraph 6 of Article 112 of the Constitution of the Republic of Lithuania, Article 5 of the Republic of Lithuania Law “On the Procedure of the Entry into Force of the Constitution of the Republic of Lithuania”, as well as with the constitutional principle of a state under the rule of law.
  2. To recognise that Paragraph 5 (wording of 22 March 2012, Official Gazette Valstybės žinios, 2012, No. 42-2042) of Article 2 of the Republic of Lithuania Law on Elections to the Seimas, insofar as it provides that a person, who has been removed from office or his mandate of a Member of the Seimas has been revoked by the Seimas under procedure for impeachment proceedings for the commission of a crime whereby the Constitution of the Republic of Lithuania has not been grossly violated and the oath has not been breached may not stand in elections for a Member of the Seimas, is in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraph 2 of Article 34, Paragraph 2 of Article 56, Article 74 and Paragraphs 1 and 2 of Article 107 of the Constitution of the Republic of Lithuania, as well as with the constitutional principle of a state under the rule of law.

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:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas