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On accepting a petition of the petitioner

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION (NO. 1B-42/2011) OF THE SUPREME ADMINISTRATIVE COURT OF LITHUANIA, THE PETITIONER, REQUESTING TO CONSTRUE WHETHER PARAGRAPH 1 OF ARTICLE 90 OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO MUNICIPAL COUNCILS (WORDING OF 30 JUNE 2010) IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

6 September 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, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition (No. 1B-42/2011) of the Supreme Administrative Court of Lithuania, the petitioner, requesting “to investigate whether Paragraph 1 (wording of 30 June 2010; Law No. XI-968) of Article 90 of the Republic of Lithuania Law on Elections to Municipal Councils, to the extent that it is not provided therein that the office of the member of the municipal council is incompatible with the office of the head of the secretariat of the municipal council, is not in conflict with the constitutional principle of a state under the rule of law and Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania”.

The Constitutional Court

has established:

1. The petition of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

In the opinion of the petitioner, the secretariat of the municipal council is not an inner structural unit of the municipal council, since by its purpose (to provide services for sittings of the municipal council, the committees, the mayor, as well as to prepare drafts of decisions of the municipal council, to consider and prepare conclusions regarding drafts of decisions of the municipal council) and its direct subordination to the mayor (under Items 8 and 9 of Paragraph 2 of Article 20 of the Republic of Lithuania Law on Local Self-Government (wording of 30 June 2010), the mayor guides the work of the secretariat of the municipal council, approves regulations of the secretariat of the municipal council, employs and dismisses employees of the secretariat, inter alia the head of the secretariat), who is accountable to the municipal council, the secretariat of the municipal council virtually has the features of an outer structural unit of the municipal council. In addition, under Item 11 of Paragraph 2 of Article 16 of the Law on Local Self-Government (wording of 30 June 2010), the municipal council, on the recommendation of the mayor, takes decisions concerning formation of the secretariat of the municipal council, therefore the secretariat, as a particular structural body of the municipal council, is virtually accountable to the municipal council.

In this case, when a member of the municipal council simultaneously holds the office of the head of the secretariat of the municipal council, such a situation is created where the member of the municipal council indirectly supervises (controls) his own activity in the secretariat of the municipal council and is accountable to himself; moreover, while being in direct subordination to the mayor, he becomes partly restricted by the will of other member of the municipal council, i.e. the mayor, as well as by his opinion regarding questions related to the competence of the municipal council and implementation of the right to self-government, inter alia when electing the mayor, dismissing him from office prior to the expiry of the term, or establishing the work remuneration of the mayor (under Item 2 of Paragraph 2 of Article 16 of the Law on Local Self-Government (wording of 30 June 2010)).

According to the petitioner, Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) consolidates an exhaustive list of positions incompatible with the office of the member of the municipal council, which does not include the office of the head of the secretariat of the municipal council, therefore a doubt is raised as to whether such legal regulation, i.e. without establishing in the law that the office of the head of the secretariat of the municipal council is incompatible with the office of the member of the municipal council, does not violate the constitutional principles of a state under the rule of law and local self-government as well as a possibility for a member of the municipal council, as a representative of the municipal community, to properly implement the right to local self-government, which is entrenched in Paragraphs 1 and 4 of Article 119 of the Constitution.

The Constitutional Court

holds that:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, requests investigation into whether Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it is not provided therein that the office of the member of the municipal council is incompatible with the office of the head of the secretariat of the municipal council, is not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

The petitioner is not disputing the legal regulation established in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), but it is disputing something that is not established in this law, which, however, in the opinion of the petitioner, ought to be established therein; thus, in this situation the issue of legislative omission is raised, i.e. such a gap in the legal regulation, which is prohibited by the Constitution.

2. Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes:

The office of the member of the municipal council shall be incompatible with the office of the President of the Republic, Seimas Member, European Parliament Member, Government member, the head of a government establishment or an establishment under a ministry whose work is related to the supervision and control of activities of municipalities, the Government representative in the county, and the State Controller and his deputy. Moreover, the office of the member of the municipal council shall be incompatible with the position of a state servant of political (personal) confidence of the mayor of that municipality, the office of the controller of that municipality or the position of a state servant of the controller’s service of that municipality, the office of the director of the administration of that municipality and his deputy, or the position of a state servant or an employee working under the employment contract in the administration of that municipality, the office of the head of a budgetary establishment of that municipality, the office of the single-person head and member of the collegiate management body of a public establishment of that municipality or an undertaking of that municipality, the office of the member of the collegiate management body (board) of a joint-stock company controlled by that municipality, or the office of the head of a joint-stock company controlled by that municipality.”

3. It needs to be noted that in its rulings of 24 December 2002 and 30 May 2003, decisions of 11 and 13 February 2004, and rulings of 19 January 2005 and 31 March 2010 the Constitutional Court formulated the official constitutional doctrinal provisions disclosing the concept of the principle of incompatibility of the office of the member of the municipal council with certain positions, however, the compliance, with the Constitution, of Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), which is disputed by the petitioner, to the extent that it is not provided therein that the office of the member of the municipal council is incompatible with the office of the head of the secretariat of the municipal council, has not been investigated in the Constitutional Court.

4. It needs to be held that the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting to investigate Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with the Constitution, to the extent that it is not provided therein that the office of the member of the municipal council is incompatible with the office of the head of the secretariat of the municipal council, is virtually in line with the requirements set in the Law on the Constitutional Court, therefore, it is to be accepted for consideration at the Constitutional Court.

Conforming to Paragraphs 3 and 4 of Article 22, Paragraph 1 of Article 28, and Article 67 of the Republic of Lithuania Law on the Constitutional Court, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To accept for consideration the petition (No. 1B-42/2011) of the Supreme Administrative Court of Lithuania, the petitioner, requesting to investigate whether Paragraph 1 of Article 90 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it is not provided therein that the office of the member of the municipal council is incompatible with the office of the head of the secretariat of the municipal council, is not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

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

Justices of the Constitutional Court: Egidijus Bieliūnas

Toma Birmontienė

Pranas Kuconis

Gediminas Mesonis

Ramutė Ruškytė

Egidijus Šileikis

Algirdas Taminskas

Romualdas Kęstutis Urbaitis