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On elections to municipal councils

Case No. 136/2010-17/2011-18/2011-19/2011

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF ARTICLE 34 AND PARAGRAPHS 2, 3, 4 AND 5 OF ARTICLE 83 OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO MUNICIPAL COUNCILS (WORDING OF 30 JUNE 2010) AND PARAGRAPH 2 OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA LAW ON FUNDING OF, AND CONTROL OVER FUNDING OF, POLITICAL PARTIES AND POLITICAL CAMPAIGNS (WORDING OF 18 MAY 2010) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

11 May 2011

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 the Seimas of the Republic of Lithuania, the party concerned, who were Algis Čaplikas, a Member of the Seimas, and Pranas Žukauskas, Chief Advisor at the Public Law Unit of the Legal Department of the Office of the Seimas,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 27 April 2011, heard constitutional justice case No. 136/2010-17/2011-18/2011-19/2011 subsequent to:

  1. the petition of the Supreme Administrative Court of Lithuania requesting to investigate whether Article 34 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it does not establish that candidates for members of municipal councils may be nominated not only by political parties, but also by other collective subjects, also Paragraph 2 of Article 3 of the Republic of Lithuania Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), insofar as it does not establish that not only political parties, but also other collective subjects, may be registered as independent participants of the political campaign, are not in conflict with Article 29, Paragraph 2 of Article 34, and Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-144/2010);

  2. the petitions of the Supreme Administrative Court of Lithuania requesting to investigate whether Paragraphs 2, 3, 4 and 5 of Article 83 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010) are not in conflict with Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania and the constitutional principles of a democratic state under the rule of law (petitions No. 1B-18/2011, 1B-19/2011, 1B-20/2011).

By the Constitutional Court decision of 14 April 2011, the said petitions of the Supreme Administrative Court of Lithuania, the petitioner, were joined into one case.

The Constitutional Court

has established:

I

The petition (No. 1B-144/2010) of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

1. While invoking the provisions of the official constitutional doctrine that were formulated in the Constitutional Court rulings of 9 February 2007 and 9 November 2010, the petitioner maintains that from the Constitution, inter alia Paragraph 2 of Article 119 thereof, a requirement arises for the legislator, after it has chosen the proportional system of elections to municipal councils, to ensure an opportunity for members of territorial communities to exercise the passive electoral right in elections to municipal councils by being included also in the lists of candidates other than those that are drawn up exclusively by political parties. However, the disputed Law on Elections to Municipal Councils does not provide for the opportunity of the participation, in elections to municipal councils, that involves not only political parties, but other collective subjects, i.e. political organisations, as well.

2. Such legal regulation when individual persons compete with lists of candidates of political parties violates the principle of equal suffrage. In elections to municipal councils, associations, as collective subjects, might be in certain situations and circumstances treated as “an appropriate substitute for political organisations”, i.e. in elections to municipal councils, associations, according to their nature and functional purpose, might be in certain situations and circumstances treated as equal rivals to political parties.

3. The disputed legal regulation disproportionately limits, compared to the opportunities of political parties, the opportunities of collective subjects to nominate candidates in elections to municipal councils and violates the principle of equality of rights, which stems from Article 29 of the Constitution; furthermore, the system of elections to municipal councils, which has been established by the legislator and is functioning at present, distorts the principle of the proportionality of representation.

4. Setting forth the said arguments, the petitioner doubts as to whether Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it does not establish that candidates for members of municipal councils may be nominated not only by political parties, but also by other collective subjects, is not in conflict with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution as well as with the constitutional principle of a state under the rule of law.

5. The same arguments are also used by the petitioner to substantiate its doubt as to whether Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), insofar as it does not establish that not only political parties, but also other collective subjects, may be registered as independent participants of the political campaign, is not in conflict with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law, since the registration as an independent participant of the political campaign is one of the conditions for implementing the passive electoral right (pursuant to Paragraphs 4 and 5 of Article 35 of the Law on Elections to Municipal Councils).

II

The petitions Nos. 1B-18/2011, 1B-19/2011 and 1B-20/2011 of the Supreme Administrative Court of Lithuania, the petitioner, are substantiated by virtually analogous arguments.

1. From the provisions of the Law on Elections to Municipal Councils (wording of 30 June 2010) it is clear that the legislator has chosen the proportional system of elections to municipal councils, however, it has established that individual persons who have nominated themselves as candidates actually compete with lists of candidates when mandates in a multi-member electoral constituency are being distributed. In the opinion of the petitioner, such legal regulation distorts the proportional electoral system, creates preconditions for misleading voters as well as distorting their will, and violates the constitutional principles of elections in a democratic state under the rule of law.

2. Considering the fact that joint lists of self-nominated candidates are, by their nature, closer to lists of candidates of parties rather than to joint lists of candidates of parties, also the fact that for the joint list of self-nominated candidates the Law on Elections to Municipal Councils (wording of 30 June 2010) sets the requirement that it have a much lower minimal number of the candidates comprising the list compared to the list of candidates of parties and the joint list of candidates of parties, the legal regulation entrenched in Paragraph 2 of Article 83 of this law, whereby one has set for joint lists of self-nominated candidates a minimum limit of 6 percent votes of the voters participating in the election (the same as for joint lists of candidates of parties and higher than for lists of candidates of parties), i.e. an election threshold, the overcoming of which entitles to participation in the distribution of mandates, violates the principle of equal suffrage and creates preconditions for the situation where the votes cast by voters in favour of a particular joint list of self-nominated candidates may indirectly influence the distribution of mandates with respect to the candidates entered in other lists of candidates. Therefore, the petitioner has had doubts regarding the compliance of Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 18 May 2010) with the constitutional principle of a state under the rule of law.

3. Under Paragraph 3 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), when calculating the quota of the distribution of mandates, the sum of votes cast by voters, which is divided by the number of mandates, shall include the votes cast in favour of the lists that have overcome the election threshold, i.e. the ones that may receive mandates, also the votes cast for all the self-nominated candidates, irrespective of whether these candidates have an opportunity to receive (will receive) a mandate. Such calculation of the quota of the distribution of mandates may result in distortion of the will of voters, since, in cases where a self-nominated candidate has not received a mandate (not received the number of votes equal to or higher than the quota of the distribution of mandates) and is not participating in further distribution of mandates, preconditions are created for the votes cast for that candidate to have influence over the calculation of the quota of the distribution of mandates as well as over the distribution of mandates with regard to the candidates entered in lists of candidates; a self-nominated candidate who has received a relatively high number of votes could also be granted no mandate where an election would involve the participation of a considerable number of the self-nominated candidates receiving no mandates, the sum of the votes cast for whom would be relatively high. Therefore, the petitioner has had doubts whether such legal regulation does not deny the principles of fair and democratic elections to representative institutions.

4. Under the legal regulation laid down in Paragraphs 2 and 4 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), a self-nominated candidate, differently from lists of candidates, participates in the distribution of mandates only according to the quota of the distribution of mandates, and no self-nominated candidate who has not thereby received a mandate participates in further distribution of mandates according to the remainders. In the opinion of the petitioner, at the final stage of the distribution of mandates, while applying the method of remainders, such legal regulation creates preconditions for receiving a mandate by a list (lists) of candidates the number of the votes cast in favour of which would be lower than the number of the votes cast for the self-nominated candidates who have received no mandates. The petitioner has had doubts as to whether such legal regulation treats votes of all voters—cast both for lists of candidates and for self-nominated candidates—in an equal manner as having equally fair influence corresponding to the expectations and will of voters when determining the results of elections, whether it does not distort the will of voters and does not violate the principle of equal elections, also whether this legal regulation, in the aspect that it provides no opportunity for individual candidates to participate in the distribution of mandates according to the method of remainders, is not in conflict with Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution and with the constitutional principles of a state under the rule of law, justice, and proportionality.

5. The petitioner has also had the doubt as to whether, by means of the aforesaid legal regulation entrenched in the Law on Elections to Municipal Councils (wording of 30 June 2010), one does not deny the imperatives for the legal regulation of the relations of elections to municipal councils that arise from the Constitution, does not impede the democratic formation of self-government representative institutions as well as the proper implementation of the right of self-government, does not in essence deny the constitutional concept of local self-government, and whether the non-compliance of the disputed provisions of the said law with the Constitution would not be a ground for questioning the constitutionality of the elections to self-government institutions that took place in 2011.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were A. Čaplikas, a Member of the Seimas, and P. Žukauskas, Chief Advisor at the Public Law Unit of the Legal Department of the Office of the Seimas (in the part of the case subsequent to petition No. 1B-144/2010 of the Supreme Administrative Court of Lithuania, the petitioner), wherein it is maintained that, in the disputed aspect, Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) and Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) are not in conflict with the Constitution. The position of the representatives of the Seimas is substantiated by the following arguments.

1. The legal regulation laid down in the Law on Elections to Municipal Councils (wording of 30 June 2010) provides for an opportunity for persons to exercise the passive electoral right, i.e. to put forward their candidature themselves; the person implementing the said right is not compelled to become related by any relations to any political party, political organisation, society or association.

Considering the prohibition entrenched in Paragraph 2 of Article 35 of the Constitution that no citizen may be compelled to belong to any society, political party, or association, if the legislator established that candidates for members of municipal councils may be nominated by political parties and other collective subjects, for example, the societies or associations defined as political organisations, the same problem of compelling a person to directly or indirectly become related to a political party or other organisation (society, association) would persist. Therefore, ensuring in elections to municipal councils the participation of independent self-nominated persons, who are not related with any collective subjects, is the only way for the legislator, after it has chosen solely the proportional system of elections, not to violate the requirements of Paragraph 2 of Article 35 of the Constitution.

2. Political pursuit is an essential feature of the party, which distinguishes the party from the other collective subjects of the legal forms that are established in laws. Associations, differently from political parties, are formed for the purposes of common needs and objectives of their members, i.e. they do not unite the citizens primarily for political purposes. Members of associations may include not only natural but also legal persons; in addition, associations are granted rather broad freedom of action, the fact which is different with regard to the political parties participating in elections, whose status and activities, as well as the procedure for funding and accountability of which are strictly regulated. All the said facts imply a quite different status of associations, due to which different legal regulation has been established with regard to associations; therefore, the disputed legal regulation does not violate the constitutional principles of equal rights and equal suffrage.

Once associations are allowed to participate in elections to municipal councils, a fair number of difficulties would arise as regards the activity of these subjects, the organisation of election campaigns as well as assurance of the supervision of and control over funding of these subjects, whereas having not guaranteed this, one would violate the principle of equal rights of political parties and associations, would create preconditions for unpredictability, instability and inefficiency of the activity of municipal councils, would deny the expectations of voters, and would pose the danger of violating the constitutional principle of responsible governance. Meanwhile, after establishing for associations the same requirements as for political parties regarding transparency and funding of as well as control over their activity, etc., the borderline between the association and political party that meet the said requirements would virtually disappear.

3. The provisions of Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) are derivative ones, they establish the same subjects as the laws on elections and referendums, therefore, the compliance of these provisions with the Constitution may not be assessed separately from the corresponding provisions of the laws on elections and referendums.

IV

1. At the Constitutional Court hearing, written explanations were submitted by the representatives of the Seimas, the party concerned, who were A. Čaplikas, a Member of the Seimas, and P. Žukauskas, Chief Advisor at the Public Law Unit of the Legal Department of the Office of the Seimas (in the part of the case subsequent to petitions Nos. 1B-18/2011, 1B-19/2011 and 1B-20/2011 of the Supreme Administrative Court of Lithuania, the petitioner), wherein it is maintained that Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) are not, in the disputed aspect, in conflict with the Constitution. The position of the representatives of the Seimas is substantiated by the following arguments.

1.1. According to the system of establishing election results that has been chosen by the legislator, self-nominated candidates are set no minimum percentage limit on votes of voters that gives the right to participate in the distribution of mandates, i.e. there is no direct election threshold; however, they are set an indirect election threshold—the quota of the distribution of mandates, which is necessary in order to obtain a mandate, as a self-nominated candidate who has polled less votes than the quota receives no opportunity to participate in the distribution of mandates. The quota of the distribution of mandates is a derivative value calculated from the votes cast by voters, and it is impossible to specify exactly in advance which self-nominated candidate will have an opportunity to participate in the distribution of mandates, therefore, at the initial stage, according to the votes cast in favour of the lists of candidates that have overcome the election threshold as well as the votes cast for all the self-nominated candidates, the quota of the distribution of mandates is calculated—an indirect election threshold is established for self-nominated candidates, and only then mandates are distributed. One may not exchange the positions of the cause and effect, i.e. to calculate the quota of the distribution of mandates solely according to the votes cast in favour of the lists of candidates that have overcome the election threshold and the votes cast for the self-nominated candidates who are participating in the distribution of mandates (who may receive mandates).

1.2. The joint list of self-nominated candidates is formed, the order of self-nominated candidates on the list is determined, and the name of the list is chosen by the common will of all the candidates; the withdrawal of the application documents of the self-nominated candidates included in the joint list of self-nominated candidates, as well as the cancellation of their registration as candidates, does not have any impact on the registration of the joint list of self-nominated candidates, whatever the number of the candidates left therein; each candidate entered in such a list continues to be an independent participant of the political campaign, and he may, in his own name, receive donations and assume obligations, and the maximum amount of political campaign expenses established to him as a self-nominated candidate remains the same, only the overall limit on the expenses of the list is raised. Due to the said circumstances the representatives of the Seimas maintain that joint lists of self-nominated candidates are similar to joint lists of candidates of parties and are different from lists of candidates of parties, therefore, with respect to joint lists of self-nominated candidates, one has reasonably set the minimum margin of 6 percent of votes of the voters participating in the election (the same as the one set for joint lists of candidates of parties), i.e. an election threshold, the overcoming of which gives the right to participate in the distribution of mandates.

1.3. The Law on Elections to Municipal Councils (wording of 30 June 2010) has entrenched the method of quotas of the highest remainder and of remainders, which allows of the maximum reflection of the will of voters when determining the election results and distributing mandates. A more accurate distribution of mandates and a more accurate expression of the will of voters are hardly possible, since there is no such method which would fully reflect the will of all the voters (all the groups of society) when distributing mandates (it would be possible only if no particular amount of mandates were set for candidates or lists of candidates, but the amount of mandates were expressed in percentage), also no method exists for recalculating votes of voters into mandates, whereby, by taking account of the amounts of remainders, mandates would be granted to those who have not gained them according to the quotas.

The average of the number of votes of voters that determines the distribution of all mandates of members of a municipal council has a closer connection with the number of votes of voters that determines the distribution of each mandate when distributing mandates according to the method of quotas and remainders (whereby the ones who have not gained any mandate according to the quota may not receive any mandates according to remainders either), rather than distributing according to quotas and then proceeding with the distribution of the mandates, which have not been distributed according to quotas, to all the candidates or lists of candidates according to remainders (whereby the ones who have not gained any mandate according to the quota may receive a mandate according to remainders), thereby, in the opinion of the representatives of the Seimas, violating the principles of a state under the rule of law, justice, proportionality, and the equal passive electoral right of self-nominated candidates and candidates on the lists of candidates.

2. At the Constitutional Court hearing, the representatives of the Seimas virtually reiterated the arguments set forth in the written explanations and answered to questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

On the compliance of Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law.

1. The Supreme Administrative Court of Lithuania, the petitioner, requests investigation into whether inter alia Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it does not establish that candidates to members of municipal councils may be nominated not only by political parties, but also by other collective subjects, is not in conflict with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law (petition No. 1B-144/2010).

In addition to its other arguments, the petitioner also notes that, in its opinion, such legal regulation when individual persons compete with lists of candidates of political parties violates the principle of equal suffrage and distorts proportionality of representation.

2. In its ruling of 9 February 2007 the Constitutional Court recognised that Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils, to the extent that after the legislator has chosen only the proportionate system of elections to municipal councils, he has not established that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities by being included in the lists of candidates to members of municipal councils that are drawn up also by entities other than political parties, was in conflict with Paragraph 2 of Article 119 of the Constitution.

Article 34 “Nomination of Candidates to Members of a Municipal Council” (wording of 21 December 2006) of the Law on Elections to Municipal Councils was set forth as follows:

1. Candidates may be nominated by a party which has been registered no later than 65 days prior to the elections pursuant to the Law on Political Parties and which meets the requirements of the Law on Political Parties regarding the number of party members.

2. A party shall nominate their candidates to members of a municipal council by presenting a list of candidates to members of a municipal council in which candidates are recorded in the succession established by the party. The number of candidates to members of a municipal council in the list may not be less than 10 and twice as big as the number of mandates set for the concrete constituency. Candidates to members of a municipal council must meet the requirements of Article 2 of this Law.”

3. On 30 June 2010, the Seimas adopted the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils (which came into force on 20 July 2010), by Article 1 whereof it set the Law on Elections to Municipal Councils (wording of 21 December 2006 with subsequent amendments and supplements) in a new wording.

Article 34 “Nomination of Candidates” of the Law on Elections to Municipal Councils (wording of 30 June 2010), the compliance of which with the Constitution has been disputed by the petitioner, prescribes:

1. Candidates may be nominated by parties registered in compliance with the Law on Political Parties no later than 185 days prior to the elections and meeting the requirements set by the Law on Political Parties regarding the number of party members.

2. A party shall nominate candidates by presenting a general list of their candidates to members of a municipal council, in which the candidates are entered in the order established by the party. In total the candidates in the list of candidates submitted by the party may not make up less than a half and more than twice of members of the municipal council to be elected in that municipality.

3. Every person who meets the requirements established in Article 2 of this Law may nominate himself as a candidate, provided that his self-nomination is supported by signatures of not less than ten percent of voters of that municipality when calculating for one mandate of the member of the municipal council, but at least 100 voters of that municipality. The number of signatures to be collected, which is fixed according to the results of the last election and rounded to the first two significant digits, shall be announced by the Central Electoral Commission at least 74 days prior to elections.”

4. It needs to be noted that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) has retained the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 21 December 2006), whereby candidates may be nominated by a party which presents a general list of their candidates to members of a municipal council (Paragraphs 1 and 2), also it has additionally established that every person who meets certain requirements set in the law may nominate himself as a candidate (Paragraph 3).

5. While construing the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), it needs to be noted that not only the persons nominated by political parties, which submit lists of candidates wherein the candidates may not make up less than a half and more than twice of members of the municipal council to be elected, may be candidates to members of a municipal council (Paragraphs 1 and 2), but also every person who has nominated himself as a candidate and who meets the requirements set in the Law on Elections to Municipal Councils and fulfils certain conditions established in this law, i.e. provided that his self-nomination is supported by signatures of not less than ten percent of voters of that municipality when calculating for one mandate of the member of the municipal council, but at least 100 voters of that municipality (Paragraph 3).

It needs to be noted that Paragraph 2 of Article 2 of the Law on Elections to Municipal Councils (wording of 30 June 2010) provides that any permanent resident of a particular municipality, who is at least 20 years of age on polling day, may be elected as a member of the council of that municipality.

6. The legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is to be construed in the context of other provisions of this law.

6.1. Paragraph 1 of Article of the Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia prescribes that members of municipal councils are elected under the proportional electoral system in multi-member constituencies, forming one multi-member constituency in each municipality; Paragraph 1 of Article 10 of this law inter alia prescribes that under the proportional electoral system, the number of members elected to a municipal council is from 15 to 51

Thus the Law on Elections to Municipal Councils (wording of 30 June 2010) has established only the proportional system of elections to municipal councils. It needs to be noted that such a system has been entrenched from the entry into force of the first wording of this law (7 July 1994), i.e. from 13 July 1994.

6.2. Article 3 “Equal Suffrage” of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes:

1. Each voter shall have one vote to cast for a list of candidates for members of the municipal council (hereinafter referred to as a “list of candidates”) or for a self-nominated candidate, i.e. a mandate vote (the sums of the mandate votes cast for each list or self-nominated candidate shall determine the number of mandates of the member of the municipal council received or not received by a concrete list of candidates, or whether or not the self-nominated candidate has been elected). A voter voting for a list of candidates may cast preference votes for the candidates of this list (the sums of the preference votes cast for each candidate on the list shall determine a place of each candidate on the list after the election).

2. All candidates for members of the municipal council, whether nominated or self-nominated, shall be equal.”

Thus, under Article 3 of the Law on Elections to Municipal Councils (wording of 30 June 2010), all candidates for members of the municipal council, i.e. self-nominated individual persons and those entered in lists of candidates as well as lists of candidates are equal, while each voter has only one mandate vote and may choose for whom to cast this vote: whether for any one self-nominated candidate, or for any whole list of candidates.

6.3. Paragraphs 1 and 2 of Article 40 “Joint Lists of Candidates. Joining of Self-nominated Candidates Together to Form Lists” of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribe:

1. At least 35 days before the election, parties may form coalitions and join the lists of nominated candidates to make a joint list of candidates in which candidates are entered in accordance with a newly established succession. Candidates on the joint list of candidates of parties may not make up less than a half and more than twice of the members of the municipal council to be elected. The name of a coalition of parties must include the word ‘coalition’ and it may not contain any references to the names of the parties which do not join this coalition or to the surnames of self-nominated candidates. A joint list of candidates of parties shall be considered to be a single list. In one municipality the same party may not participate in more than one coalition.

2. Self-nominated candidates may join together to form joint lists of self-nominated candidates. Not less than two self-nominated candidates may form a joint list of self-nominated candidates, and a self-nominated candidate may be entered only on one joint list.”

Thus, Paragraph 2 of Article 40 of the Law on Elections to Municipal Councils (wording of 30 June 2010) has entrenched the right of self-nominated candidates to join together to form a joint list which may include not less than two self-nominated candidates, while, under Paragraph 1 of this article, parties may form coalitions and join the lists of nominated candidates to make a joint list of candidates in which, as in a list of candidates of parties (pursuant to Paragraph 2 of Article 34), candidates may not make up less than a half and more than twice of the members of the municipal council to be elected.

Consequently, in elections to municipal councils the following may compete for votes of voters: lists of candidates of parties, joint lists of candidates of parties, joint lists of self-nominated candidates, and self-nominated candidates who have not joined a joint list.

6.4. It needs to be noted that the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is also to be construed in the context of the provisions of this law that regulate the procedure for voting in elections to municipal councils and the establishment of election results.

6.4.1. The Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia stipulates that each voter shall be handed one ballot paper (Paragraph 1 of Article 55), in one part whereof all self-nominated candidates and lists of candidates are entered (Item 2 of Paragraph 2 of Article 55), whereas in the other part of the ballot paper there are five special boxes intended for a voter, who votes for a particular list of candidates and gives his preference votes for the candidates of this list, i.e. who rates candidates on the list (Paragraph 1 of Article 3), to put down the election numbers of chosen candidates from one (if there are less than six candidates on the list, the number of chosen candidates must be at least one candidate less than the number of candidates on the list) to five (if there are six or more candidates on the list) (Item 3 of Paragraph 2 of Article 55, Paragraph 2 of Article 63); candidates entered in the lists of candidates shall receive mandates in accordance with the post-electoral order of precedence of the lists of candidates (Paragraph 6 of Article 83).

Thus, the voters who vote for a list of candidates, differently from the voters who vote for a self-nominated candidate, when indicating the chosen list on the ballot paper, may record up to five preference votes, and mandates may be gained by those candidates on the list for whom the most of the preference votes have been given.

6.4.2. Summing up the aforementioned provisions of the Law on Elections to Municipal Councils (wording of 30 June 2010), which regulate the procedure for voting in elections to municipal councils and the establishment of election results, it needs to be noted that when voting for a list of candidates, voters, who have one vote, may have a greater impact on the election results, i.e. the election of the candidates on the list, than when voting for a self-nominated candidate not included in the joint list, since a self-nominated candidate may obtain only one mandate.

7. Thus, while construing the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) in the context of other aforementioned provisions of this law, it needs to be noted that in holding elections to municipal councils solely under the proportional system of elections:

  • an exceptional right to nominate candidates for members of municipal councils is established only to one collective subject, i.e. a political party;

  • individual persons, i.e. permanent residents of the municipality, who meet certain requirements entrenched in the law, may nominate themselves as candidates for members of the municipal council and compete in multi-member electoral constituencies with lists of candidates;

  • self-nominated candidates have the right to join together to form joint lists of self-nominated candidates, which are subject to the requirement of a considerably lower minimum number of self-nominated candidates comprising such lists compared to lists of candidates of parties and their coalitions;

  • preconditions are created for voters, each of whom has one vote, when voting for a list of candidates or a self-nominated candidate, to differently influence the election results.

8. While deciding whether the legal regulation laid down in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), under which, as mentioned, in holding elections to municipal councils solely under the proportional electoral system, in a multi-member electoral constituency, an exceptional right to nominate candidates for members of municipal councils is established to only one collective subject, i.e. a political party (Paragraphs 1 and 2), as well as the right of individual persons, i.e. permanent residents of the municipality, who meet certain requirements set in the law, to nominate themselves as candidates for members of the municipal council (Paragraph 3) is entrenched, is not in conflict with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law, it needs to be noted that provisions of the official constitutional doctrine of electoral right have been formulated and developed in various acts of the Constitutional Court, which were adopted in constitutional justice cases, inter alia in the conclusions of the Constitutional Court of 26 November 1996 and 5 November 2004 regarding the inquiries of the President of the Republic of Lithuania whether the laws on elections to the Seimas had not been violated, the ruling of 9 February 2007 (in the aspect of elections to municipal councils), the ruling of 1 October 2008 (in the aspect of elections to the Seimas), and the ruling of 9 November 2010 (in the aspect of elections to the European Parliament).

8.1. Paragraph 2 of Article 119 of the Constitution stipulates that the members of municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct suffrage by secret ballot.

Paragraph 3 of Article 119 of the Constitution stipulates that the procedure for the organisation and activities of self-government institutions shall be established by law. This constitutional provision inter alia means that the legislator has a duty to consolidate, by means of a law, a system of elections to municipal councils, to establish the procedure and grounds for organising elections, inter alia nomination of candidates to municipal councils, voting, establishment of election results, and consideration of election disputes.

It needs to be noted that, under the Constitution, when regulating electoral relations by law, one is obliged to ensure an equal active electoral right of all the voters (the right to vote, i.e. the right to elect), as well as an equal passive electoral right of all the candidates (the right to be registered in elections as a candidate, i.e. the right to be elected).

8.2. In the aforementioned ruling of 9 February 2007 the Constitutional Court formulated certain provisions of the official constitutional doctrine of elections to municipal councils that are of significance in the case at issue:

the legislator enjoys very broad discretion when implementing its powers to establish, by law, a system of elections to municipal councils, which arise from Article 34, Paragraphs 2 and 3 of Article 119 and other provisions of the Constitution;

the Constitution does not establish any requirements to the legislator as to what system of elections to municipal councils should be chosen; it does not prohibit any changes to the chosen system of elections to municipal councils, either; for instance, the law may provide for only the proportionate or majoritarian system of elections to municipal councils, or a system, where elements of proportionate and majoritarian systems are combined; neither the proportional or majoritarian system of elections alone, nor the electoral system where certain elements of proportional and majoritarian systems are combined, may be considered as the one that violates the principle of direct elections which is entrenched in the Constitution or the one that in itself creates preconditions to violate the requirements of free and democratic elections, the universal and equal suffrage, secret ballot, as well as other standards of elections in a democratic state under the rule of law;

the fact that the Constitution does not establish any requirements to the legislator as to which system of elections to municipal councils should be chosen, does not necessarily mean that absolutely no requirements with regard to the legal regulation of the relations connected with elections to municipal councils arise from the Constitution; when regulating the relations of elections to municipal councils by the law, the legislator must pay heed to the provisions of the Constitution—its norms and principles and the constitutional concept of local self-government; the legal regulation, as established by law, should not create preconditions to violate the right of universal, equal and direct suffrage, as well as the imperative of secret ballot, either;

the proportional system of elections to municipal councils is such a system where individuals not included in the lists of candidates may not be nominated as candidates in the elections to municipal councils.

In this context it needs to be noted that the provision “Having chosen such (proportional) system of elections to municipal councils, one must ensure the possibility for the members of territorial communities to implement their passive electoral right by being included in other lists, not only those of political parties (as well as individually, in case the legislator decides so). The societies (associations), which enjoy under the law the right to draw the said lists, may be formed for the period of particular elections to municipal councils, but they may also be of permanent activity, if this is established by the law” of the Constitutional Court ruling of 9 February 2007 may not be construed as meaning that such legal regulation, under which, once the legislator has entrenched the proportional electoral system alone, in a multi-member electoral constituency, the members of territorial communities who implement their passive electoral right individually could compete with the lists of candidates as well, would be in conformity with the Constitution.

8.3. It has been mentioned that in its ruling of 9 February 2007 the Constitutional Court noted that in the proportional system of elections to municipal councils individuals not included in the lists of candidates may not be nominated as candidates in the elections to municipal councils. In its ruling of 9 November 2010, the Constitutional Court also held that after the legislator has chosen the proportional electoral system, such a situation where in the elections not only the persons entered into the lists drawn up by political parties (or other collective subjects), but also individual persons take part, is impossible, i.e. such a situation is impossible where individual persons compete for votes of voters with lists of candidates, since thereby one would distort the essence of the proportional electoral system.

8.4. In elections held under the proportional electoral system one or several multi-member constituencies are formed, in which the competition among candidates enlisted in the lists of candidates drawn up by political parties (or other collective subjects) takes place, whereas under the majoritarian electoral system individual candidates stand as candidates in single-member constituencies; in democratic states there also exists the so-called mixed electoral system, which combines both the proportional and majoritarian electoral systems (Constitutional Court ruling of 9 November 2010).

In this context it needs to be noted that, under the mixed electoral system, the two separate electoral systems, the proportional and majoritarian one, are combined without changing their principal features, i.e. individual candidates compete only in single-member electoral constituencies, whereas the candidates enlisted in the lists of candidates drawn up by political parties (or other collective subjects)—only in multi-member constituencies.

9. Under the Constitution, the legislator enjoys broad discretion as to the choice of an electoral system under which municipal councils will be elected. Whatever the system of elections to municipal councils the legislator would choose, under the Constitution, it must be based on the democratic principles of a state under the rule of law and on respect for human rights, and it must guarantee free expression of the will of the voters participating in the elections when electing a representative institution.

The legislator may also choose only the proportional system of elections to municipal councils, i.e. such a system of elections where multi-member constituencies are formed and mandates are distributed to political parties and other collective subjects proportionately to the number of the received votes, however, the legislator may not establish such legal regulation whereby in elections in multi-member electoral constituencies the persons entered in the lists of candidates drawn up by political parties (or other collective subjects) would compete with the individual persons not entered in the lists of candidates, since thereby one would distort the essence of the proportional electoral system and would violate the principle of equal suffrage entrenched in Paragraph 2 of Article 119 of the Constitution.

10. Consequently, the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby in the elections to municipal councils held solely under the proportional electoral system, in a multi-member electoral constituency, the individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council and compete in the elections with the lists of candidates, creates preconditions for distortion of the essence of the proportional electoral system and violation of the principle of equal suffrage entrenched in Paragraph 2 of Article 119 of the Constitution.

11. Thus it needs to be held that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, after the legislator has chosen only the proportional system of elections to municipal councils, it is established therein that in a multi-member electoral constituency the individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council, is in conflict with Paragraph 2 of Article 119 of the Constitution.

12. It has been mentioned that the petitioner doubts as to whether inter alia Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it does not establish that candidates for members of municipal councils may be nominated not only by political parties, but also by other collective subjects, is not in conflict with the Constitution.

13. It needs to be noted that the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia means the exceptional right of the only one collective subject, i.e. a political party, to nominate candidates for members of the municipal council which is being elected solely under the proportional electoral system.

14. It has been mentioned that in its ruling of 9 February 2007 the Constitutional Court recognised that Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils, to the extent that, after the legislator had chosen only the proportionate system of elections to municipal councils, it was not established therein that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, was in conflict with Paragraph 2 of Article 119 of the Constitution.

It needs to be noted that the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) in the aspect disputed by the petitioner —that candidates may be nominated by the only one collective subject, i.e. a political party, which presents a general list of their candidates for members of the municipal council—is identical to the one entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 21 December 2006).

15. The Constitutional Court has held more than once in its acts that the principle of a state under the rule of law entrenched in the Constitution implies continuity of jurisprudence (inter alia Constitutional Court ruling of 28 March 2006, decision of 8 August 2006, rulings of 22 October 2007 and 9 November 2010); therefore, the legal position of the Constitutional Court set forth in its ruling of 9 February 2007 carries the meaning of the precedent.

In its ruling of 9 February 2007 the Constitutional Court, while construing inter alia the aforementioned provisions of the Constitution, formulated certain provisions of the official constitutional doctrine of elections to municipal councils:

under the Constitution, such (proportionate) system of elections to municipal councils, when candidates included in the lists of political parties compete for mandates of members of municipal councils, is permissible, though this does not mean that it is constitutionally justifiable to limit the lists of candidates only to the lists formed by political parties; the members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania (citizens of the Republic of Lithuania and other permanent residents)—should have an opportunity to be elected to the councils of the respective municipalities even without support of any political party and to be included as candidates for members of municipal councils in some non-political-party list;

the legislator enjoys broad discretion to establish requirements which are to be met by the said lists drawn up not by political parties, inter alia to establish as to how many persons should be included in such a list, whether anyone should support such a list in order to register it for the elections to municipal councils, and if so, how many persons should do that, the time when such a list should be submitted for registration and under what procedure it should be done, etc.;

the legal regulation where not every union (established not for any type of objectives) (inter alia not every association, public organisation, community) could make a list of candidates for members of municipal councils and submit it for registration for the elections to municipal councils, would not be constitutionally groundless;

  • the legislator, while paying heed to the Constitution, may also establish by the law certain criteria related to the territory of activity of societies (which are not political parties), which draw up respective lists and submit them for registration to elections to municipal councils (for example, that they should cover respective administrative units of the territory of the Republic of Lithuania);

  • the constitutional concept of local self-government implies the broadest opportunities possible for all members of respective territorial community to participate in the decision-making process related to administration of affairs of the particular location (territorial community), thus—the broadest opportunities possible to compete for a place in a council of the respective municipality as well.

16. The following provisions of the official constitutional doctrine formulated in the Constitutional Court ruling of 9 November 2010 are also applicable mutatis mutandis in the case at issue: under the Constitution, the legal regulation entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions is not allowed; the legislator, having chosen only the proportional electoral system, must entrench, in the law, not only the right of political parties to participate in elections, but also establish requirements as to what other collective subjects (which meet those requirements) can participate and have the right to nominate candidates, by presenting lists of their candidates, in elections to representative political institutions.

17. The Constitution has entrenched the institutes of political parties and political organisations (Paragraph 3 of Article 35, Paragraph 2 of Article 44, Paragraph 2 of Article 83, Paragraph 2 of Article 113, Paragraph 1 of Article 114, and Article 141 of the Constitution). Political organisations may not be identified with political parties; the peculiarities of founding political organisations and their activities must be established in a law.

In its ruling of 9 November 2010, the Constitutional Court disclosed some features of the constitutional institute of political organisations, which were referred to in its ruling of 9 February 2007: the legislator, while defining the concept of political organisations in the law, may provide for their variety, inter alia for such political organisations that are founded in order to meet various socially important needs, to conduct activities which are useful for society and, alongside, to raise certain political aspirations; in the course of entrenching the right of political organisations, inter alia those founded in order to participate in elections, to present lists of candidates, certain special requirements must be established, which such organisations must comply, as, for instance: such political organisations may be founded only by the persons (a certain number thereof) who have the active electoral right regarding elections to a concrete institution, etc.

In its ruling of 9 November 2010, emphasising the importance of political organisations in the formation of political representative institutions, the Constitutional Court also noted that if the legislator, having chosen the proportional electoral system alone, established the legal regulation entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of political representative institutions, it would also mean that the opportunities of the citizens, who are not members of political parties and are not tied by any ties with any political party, to implement the passive electoral right stemming from the Constitution would be burdened in a disproportionate manner in comparison with the opportunities of the persons who are members of political parties or who have tied themselves to some political party with ties that are other than formal membership; such legal regulation would unreasonably eliminate other collective subjects, i.e. political organisations, from participation in the elections to representative political institutions, inter alia from nomination of candidates by making lists of candidates in the elections to these institutions; such legal regulation would create preconditions to violate the imperatives of justice and proportionality stemming from the Constitution, inter alia from the constitutional principle of a state under the rule of law, and to disregard the principles of electoral law stemming from the Constitution.

18. Consequently, once the legislator has chosen solely the proportional system of elections to municipal councils, the legal regulation entrenched in Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby the sole collective subject, i.e. a political party, has the exclusive right to nominate candidates for members of a municipal council by presenting a list of candidates, deviates from the imperatives of the regulation of the relations connected with elections to municipal councils entrenched in Paragraph 2 of Article 119 of the Constitution as well as from the constitutional concept of local self-government.

19. Thus it needs to be held that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, once the legislator has chosen solely the proportional system of elections to municipal councils, it has not established that permanent residents of administrative units of the territory of the Republic of Lithuania may be nominated as candidates to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of the Constitution.

20. Taking account of the arguments set forth, one is to draw a conclusion that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, once the legislator has chosen solely the proportional system of elections to municipal councils, it has established that, in a multi-member electoral constituency, individual persons not included in the lists of candidates may nominate themselves as candidates for members of the municipal council, also to the extent that it has not established that permanent residents of administrative units of the territory of the Republic of Lithuania may be nominated as candidates to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of the Constitution.

21. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is not in conflict with Article 29, Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. It needs to be noted that, in conformity with the Law on Elections to Municipal Councils (wording of 30 June 2010), an election to municipal councils took place on 27 February 2011.

Although it has been held in this ruling that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, once the legislator has chosen solely the proportional system of elections to municipal councils, it has established that, in a multi-member electoral constituency, individual persons not included in the lists of candidates may nominate themselves as candidates for members of the municipal council, also to the extent that it has not established that permanent residents of administrative units of the territory of the Republic of Lithuania may be nominated as candidates to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of the Constitution, there is no legal ground to maintain that the system of elections to municipal councils entrenched in the Law on Elections to Municipal Councils (wording of 30 June 2010) does not permit in essence the formation of representative institutions of self-government in a democratic manner as well as the implementation of the right of self-government, or that such legal regulation denies the constitutional concept of local self-government in essence.

2. The results in certain multi-member electoral constituencies of the elections to municipal councils held on 27 February 2011 are being disputed in the Supreme Administrative Court of Lithuania. The said court has also requested the Constitutional Court to investigate whether Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), in the aspect indicated by this court, are not in conflict with Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution and the constitutional principles of a democratic state under the rule of law (petitions Nos. 1B-18/2011, 1B-19/2011, 1B-20/2011).

Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) has been disputed by the petitioner in the aspect that, for joint lists of self-nominated candidates, it sets the threshold of 6 percent of votes of the voters participating in the election (the same as for joint lists of candidates of parties and higher than for lists of candidates of parties), while Paragraphs 3, 4 and 5 of the same article have been disputed by the petitioner insofar as they prescribe that, when calculating the quota of the distribution of mandates, the sum of the votes cast by voters, which is divided by the number of mandates, shall include the votes of voters given not only for the lists of candidates that have overcome the election threshold, but also for all the self-nominated candidates, irrespective of whether these candidates have a possibility of obtaining (will obtain) a mandate, also that it is prescribed therein that both the lists of candidates that have overcome the election threshold and all the self-nominated candidates shall participate in the distribution of mandates according to the quota of the distribution of mandates, however, when proceeding with the distribution of mandates according to the method of remainders, the mandates that have not been distributed while applying the method of quotas shall be distributed only to the candidates included in the lists of candidates.

2.1. It has been held in this ruling that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has been established therein that in a multi-member electoral constituency the individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council, is in conflict with Paragraph 2 of Article 119 of the Constitution.

The legal regulation entrenched in Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), which is disputed by the petitioner, is directly related to the legal regulation entrenched in Article 34 of this law, since Paragraphs 2, 3, 4 and 5 of Article 83 regulate the establishment of the results of elections to municipal councils as well as the distribution of mandates of members of municipal councils to inter alia self-nominated candidates and joint lists of self-nominated candidates.

2.2. Article 110 of the Constitution stipulates that a judge may not apply a law which is in conflict with the Constitution and consolidates a constitutional duty of a court investigating a case, in case of doubt whether the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, to suspend the consideration of the case and apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

By means of the said constitutional imperatives one seeks to attain that a legal act (part thereof) which is in conflict with the Constitution be not applied, that there would not appear any anti-constitutional legal effects due to the application of such a legal act (part thereof), that the rights of the person be not violated, that a person in whose regard a legal act inconsistent with the Constitution or the law has been applied would not unreasonably acquire, due to this, any rights or corresponding legal status that do not belong to him; the court considering the case, which, under the Constitution, not only has the powers but (if it has certain doubts) also must apply to the Constitutional Court with a petition requesting to decide whether the legal act (part thereof) is not in conflict with a legal act of higher power, inter alia (and, first of all) with the Constitution, also has the constitutionally grounded interest to receive a corresponding Constitutional Court answer (Constitutional Court ruling of 24 October 2007).

The formation of the political representative institutions that are provided for in the Constitution is subject to special requirements; these institutions may not be formed in any such way that would raise doubts as to their legitimacy. A duty arises for the legislator to establish such legal regulation that would ensure the honesty and transparency of the election process—necessary preconditions for the trust of voters in the representative institution.

The right of a person to be elected as a member of the municipal council under the conditions provided for in the law, which is guaranteed by the Constitution, is an important constitutional right of a person. Participating in the formation of political representative institutions, persons implement inter alia the right of the citizens to participate in the governance of their country, which is entrenched in Article 33 of the Constitution.

Rights and legitimate expectations, irrespective of the fact whether they are directly entrenched in the Constitution, must be defended not formally, but in reality and effectively. The right of the subjects of the electoral right, who have the right to nominate candidates, as well as the right of candidates themselves to dispute the election results, is an important guarantee of the assurance of the requirement, stemming from the Constitution, for the honesty and transparency of the election process. While construing the provisions of Paragraph 1 of Article 30 of the Constitution, in its ruling of 15 May 2007 the Constitutional Court emphasised the importance of the defence of the violated rights of a person in court and held that an imperative arises from the constitutional principle of a state under the rule of law that a person who thinks that his rights or freedoms have been violated has an absolute right to an independent and impartial court; this right cannot be artificially restricted or it is not permitted that implementation of such a right would be artificially burdened; it is not permitted to deny such a right; under the Constitution, the legislator has a duty to establish the legal regulation whereby all disputes regarding the violation of the rights or freedoms of a person might be possible to be settled in court.

Consequently, having not received an answer from the Constitutional Court regarding the compliance of the corresponding legal act with the Constitution, the Supreme Administrative Court of Lithuania would not be able to efficiently defend the right of the person (persons), nor to administer justice.

2.3. Thus, in the constitutional justice case at issue the compliance of Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with the Constitution will be investigated in the aspect in which the question of the compliance of the legal regulation established therein with the Constitution has arisen for the Supreme Administrative Court of Lithuania, the petitioner, in the course of solving concrete cases related to the already-held 2011 election to municipal councils.

III

On the compliance of Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution and the constitutional principles of a democratic state under the rule of law.

1. It has been mentioned that Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) has been disputed by the petitioner in the aspect that, for joint lists of self-nominated candidates, it sets the threshold of 6 percent of votes of the voters participating in the election (the same as for joint lists of candidates of parties and higher than for lists of candidates of parties), while Paragraphs 3, 4 and 5 of the same article have been disputed by the petitioner insofar as they prescribe that, when calculating the quota of the distribution of mandates, the sum of the votes cast by voters, which is divided by the number of mandates, shall include the votes of voters given not only for the lists of candidates that have overcome the election threshold, but also for all the self-nominated candidates, irrespective of whether these candidates have a possibility of gaining (will gain) a mandate, also that it is prescribed therein that both the lists of candidates that have overcome the election threshold and all the self-nominated candidates shall participate in the distribution of mandates according to the quota of the distribution of mandates, however, when proceeding with the distribution of mandates according to the method of remainders, the mandates that have not been distributed while applying the method of quotas shall be distributed only to the candidates included in the lists of candidates.

2. Article 83 “Establishment of Election Results in the Multi-Member Constituency” of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes:

1. The preliminary election results shall be established by the municipal electoral commission after the vote counting record of the constituency has been signed.

2. Mandates for lists of candidates and self-nominated candidates shall be distributed according to the number of mandate votes cast by voters, which has been received by each list and each self-nominated candidate, applying the method of quotas and remainders. A list of candidates may get mandates of members of the municipal council (participate in the distribution of mandates) only if not less than four per cent of the voters who participated in the election have voted in favour of it, and the joint list of candidates of parties or the joint list of self-nominated candidates may get mandates of members of the municipal council (participate in the distribution of mandates) if not less than six per cent of the voters who participated in the election have voted in favour of them. If less than 60 per cent of votes were cast for the lists of candidates participating in the distribution of mandates and for self-nominated candidates, the right to participate in the distribution of mandates shall be acquired by that list of candidates (or lists if an equal number of votes were cast in favour of them) which so far has not participated in the distribution of mandates and in favour of which the highest number of votes was cast. In the same manner, the number of the lists of candidates which have the right to participate in the distribution of mandates shall be increased to reach such a number that not less than 60 per cent of votes would be cast for the lists of candidates participating in the distribution of mandates and for self-nominated candidates.

3. The quota of the distribution of mandates shall be calculated. It shall be equal to the sum of the cast mandate votes received by the lists of candidates participating in the distribution of mandates and by self-nominated candidates, divided by the number of mandates. If a remainder is received when dividing, 1 shall be added to the quotient.

4. A self-nominated candidate who is not on a joint list shall receive a mandate if the number of votes cast for him is equal to or higher than the quota of the distribution of mandates. The number of votes cast for each list of candidates participating in the distribution of mandates shall be divided by the quota of the distribution of mandates. The received integer quotient shall be the number of mandates for each list of candidates according to the quota of the distribution of mandates, and the remainders received as a result of the division shall be used to distribute the remaining mandates (which have not been distributed to the self-nominated candidates who are not on a joint list, and lists of candidates) according to the remainders. Therefore, the names of all the lists of candidates shall be written down in the succession in which the last is followed by the first according to the remainders of the division received by lists, beginning with the largest. If two lists of candidates have an equal number of remainders, the first written down shall be the list which possesses a smaller election number. The mandates left undistributed during the distribution by the method of quotas shall be distributed by one to lists of candidates according to the succession, beginning with the list of candidates which was written down first.

5. If one of the lists of candidates receives more mandates than there are candidates on the list, these mandates shall be distributed to other lists by further applying the method of remainders to the distribution of mandates.

6. Candidates for members of the municipal council of the same list shall receive mandates in accordance with the post-electoral order of precedence of the lists of candidates.”

2.1. Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) sets the requirement that lists of candidates, in order they could participate in the distribution of mandates, must receive a certain amount of votes of the voters participating in the election (percentage limit), i.e. it sets election thresholds: for lists of candidates of parties—4 percent of votes of the voters who have participated in the election, while for joint lists of candidates of parties and joint lists of self-nominated candidates—6 percent of votes of the voters who have participated in the election. No minimal percentage limit of votes of the voters, the overcoming of which would qualify for participation in the distribution of mandates, is set for a self-nominated candidate.

Under the said legal regulation, the joint list of self-nominated candidates is subject to the same requirement as the joint list of candidates of parties, i.e. the one higher than that set for the list of candidates of a party. In other words, in establishing the election results and distributing mandates, the joint list of self-nominated candidates, which, as mentioned, may include even two candidates, is equated with the joint list of candidates of parties. Formation of the joint list of self-nominated candidates and that of the joint list of candidates of parties differs: one of them comprises individual self-nominated candidates, while the other comprises parties by joining their lists of candidates.

2.2. Under Paragraph 3 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), when construed alongside Paragraph 2 of the same article, while calculating the quota of the distribution of mandates, the sum of the votes cast by voters, which is divided by the number of mandates, includes the votes cast only in favour of the lists that have overcome the election threshold and the votes cast for all self-nominated candidates. For the latter, as mentioned, the minimum percentage limit of the votes cast by voters, the overcoming of which would qualify for participation in the distribution of mandates, is not set.

2.3. Under Paragraph 4 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), a self-nominated candidate not included in the joint list of self-nominated candidates receives a mandate if the number of the votes cast for him is not less than the quota of the distribution of mandates calculated in accordance with Paragraph 3 of the same article.

Thus, the distribution of mandates according to the quota of the distribution of mandates, which is calculated in accordance with Paragraph 3 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), involves participation of the lists of candidates that have overcome the election threshold as well as all the self-nominated candidates. Under Paragraph 4 of this article, when proceeding with the distribution of mandates according to the method of remainders, the mandates left undistributed while applying the method of quotas are distributed only to the candidates entered in the lists of candidates.

In addition, even in the event when the number of the votes cast for an independent self-nominated candidate, who is not on the joint list of candidates, is considerably higher than the quota of the distribution of mandates, such a candidate may obtain only one mandate.

2.4. It needs to be noted that, under Paragraph 5 of the same article, also in the event any one of the lists of candidates should receive a greater number of mandates than there are candidates on the list, these mandates, when proceeding with the distribution of mandates according to the method of reminders, are distributed only to the other lists of candidates that have overcome the election threshold, and they may not be distributed to self-nominated candidates.

2.5. Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia prescribes that a self-nominated candidate, who is not on the joint list, receives a mandate if the number of the votes cast for him is equal to or higher than the quota of the distribution of mandates, whereas the number of mandates to be received, according to the quota of the distribution of mandates, by each list of candidates participating in the distribution of mandates (i.e. if not less than 4 or 6 percent of the voters participating in the election have voted in favour of it) is calculated by dividing the number of the votes cast in favour of each of these lists by the quota of the distribution of mandates; the mandates left undistributed while applying the method of quotas are distributed to the lists of candidates.

Thus, lists of candidates can obtain and more than one mandate, as the number of the mandates to be received by them depends on the number of the votes cast in favour of them (the said number is divided by the quota of the distribution of mandates), whereas a self-nominated candidate not included in the joint list can obtain only one mandate even in the event when the number of the votes cast for him by voters exceeds several times the quota of the distribution of mandates.

Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) also provides that if less than 60 percent of votes are cast for the lists of candidates participating in the distribution of mandates and for self-nominated candidates, the number of the lists of candidates which have the right to participate in the distribution of mandates is increased to reach the limit of 60 percent of votes by including into the distribution of mandates the lists of candidates that so far have not participated in the distribution of mandates and in favour of which the highest number of votes has been cast; in this way one seeks to ensure the number of members in elected municipal councils provided for in this law.

It needs to be noted that the aforesaid legal regulation also creates preconditions for appearance of such a situation where more than 60 percent of votes would be cast for one or several self-nominated candidates (or joint lists of self-nominated candidates which would include only several candidates), while the number of the votes cast for any other list of candidates would not be reaching the election threshold set by the law, therefore, the mandates of members of municipal councils left undistributed after the distribution of mandates could not be distributed to the said self-nominated candidates (or joint list of self-nominated candidates which would include only several candidates). The said situation would not result in the election of such a number of members of the municipal council which should be elected according to Paragraph 1 of Article 10 of the Law on Elections to Municipal Councils (wording of 30 June 2010) (under which the total number of elected members of the municipal council is from 15 to 51), i.e. it could lead to a lack of persons (candidates) to whom mandates ought to be and could be distributed. Holding an election in the said manner would make the formation of the municipal council impossible.

3. It has been mentioned that Paragraph 2 of Article 119 of the Constitution provides that the members of municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct suffrage by secret ballot, while the provision of Paragraph 3 of Article 119 of the Constitution that the procedure for the organisation and activities of self-government institutions shall be established by law also means that the legislator has a duty to entrench, by means of a law, a system of elections to municipal councils and establish the grounds and procedure for organising elections.

It has also been mentioned that, under the Constitution, when regulating electoral relations by the law, one is obliged to ensure an equal active electoral right of all the voters (the right to vote, i.e. the right to elect), as well as an equal passive electoral right of all the candidates (the right to be registered in elections as a candidate, i.e. the right to be elected). It has also been mentioned that the legislator, while heeding the Constitution, may also establish by law that municipal councils be elected solely under the proportional electoral system.

In the context of the constitutional justice case at issue it needs to be noted that the election system under which a representative institution is elected is the whole complex of the rules, principles and criteria entrenched in election laws, on the basis of which inter alia the results of voting are established. No electoral system may ensure that the established election results would reflect the vote of each voter participating in the election and that each candidate for whom at least a certain number of voters have cast their votes would participate in the distribution of mandates, nevertheless, it is important that this system not be favourable only to certain subjects implementing their passive electoral right and that it not create any preconditions to not reflect the will of the majority of voters.

The legislator, when regulating the relations of elections of members of municipal councils, has broad discretion to choose the methods for establishing the results of elections to an elective representative institution as well as for distributing mandates and to fix the so-called election thresholds with respect to subjects implementing the passive electoral right, i.e. to establish that they may participate in the distribution of mandates only after polling a certain number of votes that is set by the law and which may constitute a particular percentage expression of votes of the voters participating in the election that is known in advance or a certain number of votes that is determined after calculating votes of the voters who have participated in the election to a representative institution; an election threshold, as a rule, is established by seeking to avoid a serious split into small factions (groups) in a representative institution and to ensure its stability. The said legislator’s discretion, however, is not absolute; the legislator must pay heed to the provisions—norms and principles—of the Constitution, inter alia the constitutional concept of local self-government as well as the principles of universal, equal, and direct suffrage that stem from Paragraph 2 of Article 119 of the Constitution. The election threshold set by the legislator for electing a representative institution must not be so high as to create preconditions not to reflect the interests of different voters and to violate their right to participate while deciding questions of self-government through democratically elected representatives; one may not ignore the fundamental differences of election participants and fix the same election threshold for essentially different subjects implementing the passive electoral right, also one may not establish a different election threshold for essentially analogous subjects implementing the passive electoral right, since otherwise one would violate inter alia the principle of equal suffrage consolidated in Paragraph 2 of Article 119 of the Constitution.

4. While deciding whether Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it sets, for joint lists of self-nominated candidates, the threshold of 6 percent of votes of the voters participating in the election (the same as for joint lists of candidates of parties and higher than that for lists of candidates of parties), is not in conflict with the Constitution, first of all, it needs to be noted that there are no legal arguments which would make it possible to substantiate the facts that the election thresholds of the aforesaid size, i.e. 4 and 6 percent of votes of the voters participating in the election, that have been chosen by the legislator for lists of candidates of parties and joint lists of candidates of parties, the two of which are characterised by an essential difference between them (one of them is drawn up by a party, while the other—by parties joining together their lists of candidates), are too high and that, in elections to municipal councils, which are held under the proportional electoral system, they create preconditions not to reflect the interests of various voters as well as to violate the right of the said voters to participate in deciding questions of self-government through the democratically elected representatives.

4.1. One needs to assess differently the fact that, in Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), for joint lists of self-nominated candidates one sets the same threshold of votes of the voters participating in the election as for joint lists of candidates of parties, i.e. 6 percent of votes. While establishing the election threshold, joint lists of self-nominated candidates, which join together self-nominated persons, are equated with joint lists of candidates of parties, which are formed by parties joining their lists of candidates, even though the aforesaid subjects implementing the passive electoral right are essentially different.

Joint lists of self-nominated candidates, with respect to the subjects drawing them up, are closer to the list of candidates formed by one party, rather than to the joint list of candidates of parties, which is formed by several parties joining together their lists of candidates.

4.2. Thus, it needs to be held that the legal regulation entrenched in Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it is established therein that the joint list of self-nominated candidates may receive mandates of members of the municipal council (participate in the distribution of mandates) only if not less than 6 percent of the voters participating in the election have voted in favour of it, disregards the principle of equal suffrage, which stems from Paragraph 2 of Article 119 of the Constitution.

4.3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils and has established that in a multi-member electoral constituency individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council and join together to make a joint list of self-nominated candidates, also after it has established that the list of candidates of a political party may receive mandates of members of the municipal council (participate in the distribution of mandates) only if not less than 4 percent of the voters participating in the election have voted in favour of it, it is provided therein that the joint list of self-nominated candidates may receive mandates of members of the municipal council (participate in the distribution of mandates) only if not less than 6 percent of the voters participating in the election have voted in favour of it, is in conflict with Paragraph 2 of Article 119 of the Constitution.

5. While deciding whether Paragraphs 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it is provided therein that both the lists of candidates that have overcome the election threshold and all the self-nominated candidates participate in the distribution of mandates according to the quota of the distribution of mandates, however, when proceeding with the distribution of mandates according to the method of remainders, the mandates left undistributed while applying the method of quotas are distributed only to the candidates entered in the lists, are not in conflict with the Constitution, it needs to be noted that, as mentioned, in the Law on Elections to Municipal Councils (wording of 30 June 2010), the minimum amount of votes set for self-nominated candidates, which gives the right to participate in the distribution of mandates, i.e. the so-called election threshold that precludes the possibility of receiving a mandate by those who have not overcome it, is established not in a percentage amount, calculated on the basis of votes of all the voters who have participated in the election, but according to Paragraph 3 of Article 83 of this law while calculating the quota of the distribution of mandates.

5.1. In the context of the constitutional justice case at issue it needs to be emphasised that, having not established, in the law, any minimum percentage amount of the votes cast by voters for self-nominated candidates, which would qualify them for the participation in the distribution of mandates, i.e. any election threshold, the legislator may also establish that such an election threshold be a certain amount of the votes cast by voters, which would be determined after calculating votes of the voters participating in the election.

5.2. Under Paragraph 4 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), a self-nominated candidate not included in the joint list of self-nominated candidates receives a mandate if the number of the votes cast for him is not less than the quota of the distribution of mandates calculated in accordance with Paragraph 3 of the same article, i.e. by dividing the sum of the votes cast by voters for the lists of candidates that have overcome the election threshold and for all the self-nominated candidates by the number of mandates.

It needs to be noted that a self-nominated candidate may receive only one mandate of the member of the municipal council, therefore, even if the number of the votes cast for him is higher than the quota of the distribution of mandates calculated according to Paragraph 3 of the same article, he may not receive a second mandate.

5.3. It has been mentioned that none of electoral systems may ensure that the established election results will reflect the vote of each voter participating in the election and that each candidate for whom at least a certain number of voters have cast their votes will participate in the distribution of mandates, nevertheless, it is important that this system not be favourable only to certain subjects implementing their passive electoral right.

It has also been mentioned that the legislator, when regulating the relations of elections of members of municipal councils, has broad discretion as to the choice of methods for establishing the results of elections and for distributing mandates; the legislator may provide that the election threshold for subjects implementing the passive electoral right may also be a certain amount of votes cast by voters, which would be established after calculating votes of the voters who have participated in the election.

5.4. Thus, there are no legal arguments on the basis of which it would be possible to substantiate that the legal regulation established in Paragraphs 3 and 4 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby a self-nominated candidate not included in the joint list of self-nominated candidates receives a mandate if the number of votes cast for him is not less than the quota of the distribution of mandates calculated in accordance with Paragraph 3 of the same article (i.e. the sum of the votes cast by voters for the lists of candidates that have overcome the election threshold and for all the self-nominated candidates is divided by the number of mandates), and in this way the so-called election threshold is established for self-nominated candidates, also the legal regulation established in Paragraphs 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby when proceeding with the distribution of mandates according to the method of remainders, mandates are distributed only to the candidates entered in the lists of candidates, disregard the requirements of the Constitution. At the same time it needs to be emphasised that such assessment of the legal regulation laid down in Paragraphs 3, 4 and 5 of Article 83 of the aforesaid law may not be construed as denying the conclusion that has been drawn in this ruling that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has been established therein that in a multi-member electoral constituency the individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council, is in conflict with Paragraph 2 of Article 119 of the Constitution.

6. While deciding whether Paragraphs 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), insofar as it is established therein that, when calculating the quota of the distribution of mandates, the sum of votes cast by voters, which is divided by the number of mandates, shall include the votes cast by voters not only in favour of the lists that have overcome the election threshold, but also the votes cast for all the self-nominated candidates, irrespective of whether these candidates have a possibility of obtaining (will obtain) a mandate, are not in conflict with the Constitution, one must take account of the conclusion drawn in Item 4 of Section III of the reasoning part of this ruling.

6.1. Consequently, once the number of votes cast by voters, which determines the granting of a mandate to self-nominated candidates, is established and the mandates are distributed to self-nominated candidates, this number, which is to be rated as an election threshold for self-nominated candidates, under Paragraphs 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), remains to be the quota of the distribution of mandates, whereby mandates are given to the lists of candidates which participate in the distribution of mandates, irrespective of the fact that, when distributing mandates, the amount of this quota for the candidates on the lists of candidates is determined not only by the votes received by the lists of candidates that have overcome the election threshold, but also by the votes received by all the self-nominated candidates, which create preconditions for distributing the remaining mandates to the lists of candidates disproportionately to the number of votes received by them.

6.2. Thus, it needs to be held that the legal regulation laid down in Paragraphs 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby mandates are distributed to the lists of candidates which participate in the distribution of mandates according to the quota of the distribution of mandates calculated on the basis of the votes cast by voters not only in favour of these lists of candidates, but also the votes cast for all the self-nominated candidates, creates preconditions for distorting the will of voters and the proportionality of their representation as well as violating the principle of the equal suffrage in elections to municipal councils consolidated in Paragraph 2 of Article 119 of the Constitution.

6.3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraphs 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils and has established that in a multi-member electoral constituency the individual persons not included in the lists of candidates may nominate themselves as candidates for members of the municipal council and compete there with lists of candidates, it is provided therein that mandates are distributed for the lists of candidates which participate in the distribution of mandates according to the quota of the distribution of mandates calculated on the basis of the votes cast by voters not only in favour of these lists of candidates, but also the votes cast for all the self-nominated candidates, are in conflict with Paragraph 2 of Article 119 of the Constitution.

7. Having held that Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) are, to the aforesaid extent, in conflict with Paragraph 2 of Article 119 of the Constitution, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Paragraphs 2, 3, 4 and 5 of Article 83 of the Law on Elections to Municipal Councils (wording of 30 June 2010) are not in conflict with Paragraph 2 of Article 34 of the Constitution and the constitutional principles of a democratic state under the rule of law.

IV

On the compliance of Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law.

1. The Supreme Administrative Court of Lithuania, the petitioner, requests investigation into whether inter alia Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), insofar as it does not establish that not only political parties, but also other collective subjects, may be registered as independent participants of a political campaign, is not in conflict with Article 29, Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law (petition No. 1B-144/2010).

2. On 18 May 2010, the Seimas adopted the Republic of Lithuania Law on Amending the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns, which came into force on 15 September 2010, save Article 3 thereof, which came into force on 31 May 2010. By Article 1 of this law, the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 23 August 2004 with subsequent amendments) was set in a new wording.

Under the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), according to the right to receive donations and incur political campaign expenditure, political campaign participants may be independent and represented (Paragraph 1 of Article 3); only independent participants of the political campaign related to elections, i.e. persons who seek to be elected (Paragraph 9 of Article 2), may accept donations and assume property obligations relating to political campaign expenditure (Paragraph 6 of Article 3).

Paragraph 2 of Article 3 “Independent and Represented Political Campaign Participants” of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), which is disputed by the petitioner in the aforementioned aspect, prescribes that “The following may be registered only as an independent political campaign participant: 1) a political party; 2) a potential candidate; 3) a self-nominated candidate; 4) referendum initiators; 5) referendum opponents”.

Paragraph 4 of Article 3 of this law prescribes that a candidate entered in the list of candidates, also a candidate or a list of candidates, in the absence of a proposal (application) of the political party which nominated them to register them as an independent political campaign participant, are registered as a represented political campaign participant. It also needs to be mentioned that Paragraph 3 of the said article provides that inter alia a list of candidates nominated by a political party may be registered as an independent political campaign participant in elections to municipal councils, where there is a proposal (application) of the political party that has nominated it.

3. When construing the legal regulation laid down in Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), which is disputed by the petitioner, alongside the aforementioned provisions of this law, it needs to be noted that inter alia a political party and a self-nominated candidate may be registered only as independent participants of the political campaign related to elections, i.e. persons who seek to be elected and may accept donations and assume property obligations relating to political campaign expenditure.

3.1. It needs to be noted that the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) is applied to the political campaigns related inter alia to the elections held in Lithuania under the Laws on Elections of the President of the Republic of Lithuania, Elections to the Seimas of the Republic of Lithuania, Republic of Lithuania Elections to the European Parliament and the Law on Elections to Municipal Councils, thus, it is applied to the political campaigns related to elections to municipal councils as well (Paragraph 2 of Article 7).

3.2. The provision of Item 3 of Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) that inter alia a self-nominated candidate may be registered as an independent political campaign participant (also an analogous provision entrenched in the aforementioned Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 23 August 2004), as well as the right of candidates to be participants of the political campaign which is provided for in Article 3 of the Law on Control Over Funding of Political Campaigns (wording of 11 November 1997)), from the very entry into force of this provision, could be applied to elections to the Seimas (when electing part of Members of the Seimas under the majoritarian electoral system in one-member electoral constituencies).

It needs to be noted that the provision of Item 3 of Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) that inter alia a self-nominated candidate may be registered as an independent political campaign participant was applied to elections of municipal councils only from the entry into force of the Law on Elections to Municipal Councils (wording of 30 June 2010), Paragraph 3 of Article 34 whereof, as mentioned, has entrenched the right of every person who meets the requirements set in this law to nominate himself as a candidate for members of the municipal council, i.e. it became applicable as from 20 July 2010.

3.3. It also needs to be noted that Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) prescribes that only one collective subject, i.e. a political party, may be registered as an independent political campaign participant. It needs to be noted that at present none of the laws regulating the relations of elections, inter alia the Law on Elections to Municipal Councils (wording of 30 June 2010), provides for the right of other collective subjects, i.e. other than political parties, to nominate candidates and participate in elections.

4. Thus, when construing, in the aspect disputed by the petitioner, the legal regulation laid down in Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), which is applied to the political campaigns related inter alia to elections to municipal councils, alongside the provisions of Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), it needs to be noted that the right to be an independent political campaign participant in elections to municipal councils is granted to a collective subject—a political party, also to a self-nominated candidate.

5. It has been mentioned that the petitioner, while disputing Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) as being related to the disputed provisions of the Law on Elections to Municipal Councils (wording of 30 June 2010), invokes the same arguments which are used to substantiate its doubts regarding the compliance of Article 34 the Law on Elections to Municipal Councils (wording of 30 June 2010) with the Constitution in the aspect that it is not established therein that candidates for members of municipal councils may be nominated not only by political parties, but also other collective subjects, since, in the opinion of the petitioner, the registration as an independent political campaign participant is one of the conditions for implementing the passive electoral right.

Items 3 and 4 of Paragraph 4 and Item 4 of Paragraph 5 of Article 35 of the Law on Elections to Municipal Councils (wording of 30 June 2010) provide that a party nominating a list of candidates, in order its participation in the election be registered, and a person who has decided to nominate himself as a candidate for members of the municipal council, in order to be registered as a potential candidate (candidate), must file with the municipal electoral commission inter alia the certificate issued by the Central Electoral Commission concerning the registration as an independent participant of the political campaign. The party must also file with the municipal electoral commission the certificate concerning the registration of the list of candidates for members of the municipal council, which is being nominated by this party, as an independent participant of the political campaign or the certificate indicating that the application (request) to register this list as an independent participant of the political campaign has not been submitted.

Thus, the one’s registration as a potential candidate (candidate) in an election under the aforesaid provisions of Article 35 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is directly related with the registration as an independent political campaign participant under Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010).

6. Having held in this ruling that Article 34 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has not been established therein that permanent residents of administrative units of the territory of the Republic of Lithuania may be nominated as candidates to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of the Constitution, it needs to be held that Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has not been established therein that not only political parties, but also other collective subjects that meet the requirements set by the legislator, and whose members may be permanent residents of administrative units of the territory of the Republic of Lithuania, may be independent participants of the political campaign, is in conflict with Paragraph 2 of Article 119 of the Constitution.

7. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Paragraph 2 of Article 3 of the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010) is not in conflict with Article 29 and Paragraph 2 of Article 34 of the Constitution and 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 Article 34 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010; Official Gazette Valstybės žinios, 2010, No. 86-4523, No. 141), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has been provided therein that individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council in a multi-member electoral constituency, also to the extent that it has not been established therein that permanent residents of administrative units of the territory of the Republic of Lithuania may be nominated as candidates to the councils of respective municipalities by being included in the lists of candidates for members of municipal councils that are drawn up also by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 2 of Article 83 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010; Official Gazette Valstybės žinios, 2010, No. 86-4523, No. 141), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils and has established that individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council in a multi-member electoral constituency and join together to make a joint list of self-nominated candidates, also after it has established that the list of candidates of a political party may receive mandates of members of the municipal council (participate in the distribution of mandates) only if not less than 4 percent of voters participating in the election have voted in favour of it, it has been established therein that the joint list of self-nominated candidates may receive mandates of members of the municipal council (participate in the distribution of mandates) only if not less than 6 percent of voters participating in the election have voted in favour of it, is in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

3. To recognise that Paragraphs 3, 4 and 5 of Article 83 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010; Official Gazette Valstybės žinios, 2010, No. 86-4523, No. 141), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils and has established that individual persons not entered in the lists of candidates may nominate themselves as candidates for members of the municipal council in a multi-member electoral constituency and compete there with lists of candidates, it has been provided therein that mandates are distributed for the lists of candidates, which participate in the distribution of mandates, according to the quota of the distribution of mandates calculated on the basis of the votes cast by voters not only in favour of these lists of candidates, but also the votes cast for all the self-nominated candidates, are in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 2 of Article 3 of the Republic of Lithuania Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns (wording of 18 May 2010; Official Gazette Valstybės žinios, 2010, No. 63-3091), to the extent that, after the legislator has chosen solely the proportional system of elections to municipal councils, it has not been established therein that not only political parties, but also other collective subjects that meet the requirements set by the legislator, and whose members may be permanent residents of administrative units of the territory of the Republic of Lithuania, may be independent participants of the political campaign, is in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

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

The ruling is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:             Egidijus Bieliūnas

                                                                    Toma Birmontienė

                                                                    Pranas Kuconis

                                                                    Gediminas Mesonis

                                                                    Egidijus Šileikis

                                                                    Algirdas Taminskas

                                                                    Romualdas Kęstutis Urbaitis

                                                                    Dainius Žalimas