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On publishing information about candidates for members of municipal councils and on incompatibility of the office of a member of the municipal council with other offices

Case No. 14/2011-35/2011

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 1 OF ARTICLE 89 AND PARAGRAPH 1 OF ARTICLE 90 OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO MUNICIPAL COUNCILS (WORDING OF 30 JUNE 2010) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

17 November 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 representative of the Seimas of the Republic of Lithuania, the party concerned, who was Vytautas Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities,

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 25 October 2011, heard constitutional justice case No. 14/2011-35/2011 subsequent to:

1) a petition of the Supreme Administrative Court of Lithuania requesting to investigate whether Paragraph 1 of Article 89 of the Republic of Lithuania Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that each candidate must make it public if he has ever been found guilty of any serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, even though such a criminal deed was later decriminalised, is not in conflict with Article 29 and Paragraph 2 of Article 34 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law (petition No. 1B-12/2011);

2) a petition 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 does not provide that the office of a 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 (petition No. 1B-42/2011).

By the Constitutional Court decision of 18 October 2011, the said petitions of the Supreme Administrative Court of Lithuania, the petitioner, were joined into one case.

The Constitutional Court

has established:

I

1. Petition No. 1B-12/2011 of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

1.1. The legal regulation laid down in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), under which candidates who have been found guilty, by a court, of the criminal deeds that were later decriminalised, i.e. recognised as, in essence, not dangerous, are equated with candidates who have a previous conviction for the criminal deeds that have not been decriminalised and which are, under effective laws, recognised as dangerous and incurring criminal liability—in both cases a poster of a candidate or a poster with a list of candidates, regarding the fact that the candidate has been found guilty of a criminal deed, provide for voters the same information, which, from the point of view of election law, is to be regarded as negative and may weaken the opportunities of the candidates concerned to be elected and represent the community interests of the respective municipality—may not be justified by the public interest, the aim of informing voters about candidates, or by any other legitimate objectives, and it disproportionately limits the passive electoral right of the permanent residents of a municipality who have been found guilty of any serious or grave crimes, where such deeds were later decriminalised, i.e. such regulation limits the right of the said residents to be elected. Therefore, the petitioner has had doubts regarding the compliance of the disputed legal regulation with Article 29 and Paragraph 2 of Article 34 with the Constitution and the constitutional principles of proportionality and justice.

1.2. The requirement set in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) that “Each candidate must make it public if <...> he has ever been found guilty of any serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state” is not completely clear, since, while speaking about the same period until 11 March 1990, one uses two different notions which name the courts of the said period: “courts of the Republic of Lithuania” and “courts of the occupation regime”, and it is not unambiguously clear whether one must make public the judgements regarding candidates that were passed by the courts of the Lithuanian SSR, hence a possibility of subjects of law to be aware of what is required of them is aggravated. Therefore, while taking account of the official constitutional doctrinal provisions, which were formulated in Constitutional Court rulings and disclose the meaning of the requirements of legal certainty and legal clarity, the petitioner has also had doubts regarding the compliance of the disputed provision with the constitutional principle of a state under the rule of law.

2. Petition No. 1B-42/2011 of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

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 a 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. not establishing in the law that the office of the head of the secretariat of the municipal council is incompatible with the office of a 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 said doubts of the petitioner are substantiated by the fact that, in the opinion of the petitioner, the secretariat of the municipal council is not an inner structural unit characteristic 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 draft decisions of the municipal council, to consider and prepare conclusions regarding draft 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 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 displays 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, in essence, accountable to the municipal council.

When a member of the municipal council at the same time holds the office of the head of the secretariat of the municipal council, such a situation is created where the said 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 willpower of another member of the municipal council, i.e. the mayor, as well as by his opinion concerning questions related to the competence of the municipal council and implementation of the right to self-government, inter alia those concerning elections of the mayor, his dismissal from office prior to the expiry of the term, or establishment of 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)).

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, who was V. Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities.

1. In the written explanations (regarding the part of the case subsequent to petition No. 1B-12/2011 of the petitioner) it is maintained that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that each candidate must make it public if he has ever been found guilty of any serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, is not in conflict with the Constitution, with the exception of cases where on the day of election the deed in question is decriminalised or it is not regarded as a criminal one in the Republic of Lithuania. The position of the representative of the Seimas is substantiated by the following arguments.

1.1. While taking account of the fact that the notion “ever”, which is used in the disputed provision, also means the period up to 11 March 1990, the notion “foreign state“ of the same provision is to be construed as a state other than the state of the Republic of Lithuania, in the name of which a court judgement (decision) was issued, irrespective of whether such a state had existed no longer than up until 11 March 1990 or until 11 March 1990 and afterwards, also irrespective of what part of the territory of the Republic of Lithuania, as determined after 11 March 1990, the jurisdiction of the foreign state had covered until 11 March 1990.

1.2. The notion “serious or grave crime”, which is used in the disputed provision, may be construed by taking account of its meaning in the law of a foreign state as well as its meaning in the law of the Republic of Lithuania. A situation is possible where these meanings will either differ or be, on the whole, impossible to determine due to the fact that they are not and were not defined. In addition, a situation is also possible where something what was or is, under the law of a foreign state, regarded as a serious or grave crime, is not, under the law of the Republic of Lithuania, altogether regarded as a crime, or such a deed can be decriminalised.

1.3. By the disputed legal regulation, candidates found guilty of the deeds that are at present decriminalised are equated with candidates found guilty of the deeds that have not been decriminalised. Therefore, the requirement to make public the information about having been found guilty of the deed that is decriminalised may not be justified by any legitimate interest and constitutes a disproportionate limitation of the passive electoral right.

2. In the written explanations (regarding the part of the case subsequent to petition No. 1B-42/2011) it is also maintained that Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that the office of a 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 Constitution. The position of the representative of the Seimas is substantiated by the following arguments.

2.1. The list of positions incompatible with the office of a member of the municipal council, which is provided for in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), may not be viewed as a final one.

2.2. The representative of the Seimas has acknowledged that in cases when a member of the municipal council is at the same time also the head of the secretariat of the municipal council, the right of the municipal council to supervise the activity of the secretariat is distorted, as a situation is created where the member of the municipal council indirectly supervises his own activity in the secretariat of the municipal council and is accountable to himself.

2.3. When a member of the municipal council at the same time holds the office of the head of the secretariat of the municipal council and is, thus, in direct subordination to the mayor, then in the field directly related to the competence of the municipal council and implementation of the right to self-government, he becomes restricted by the willpower, as well as the opinion, of another member of the municipal council, i.e. the mayor, who has the authority to give the said member of the municipal council obligatory orders regarding questions of implementation of the right to self-government; in this case, a constitutionally unjustified and unreasonable influence may be exerted on the decision-making of the said member of the municipal council, and the freedom and independence of such a representative of the municipal community may be limited when he is implementing the functions of a member of the municipal council.

2.4. According to the representative of the Seimas, the secretariat of the municipal council is not an inner structural unit characteristic of the municipal council, as it virtually displays the features of an outer structural unit of the municipal council.

III

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from Dr. Algimantas Čepas, Director of the Institute of Law, and Prof. Dr. Egidijus Kūris, Head of the Department of Public Law of the Faculty of Law of Vilnius University.

IV

At the Constitutional Court hearing, the representative of the Seimas, the party concerned, who was V. Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities, specified in more detail the arguments set forth in his written explanations and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

On the compliance of Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principles of justice and a state under the rule of law.

1. The petitioner requests investigation into whether Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that each candidate must make it public if he has ever been found guilty of any serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, even though such a criminal deed was later decriminalised, is not in conflict with Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principles of justice and a state under the rule of law.

2. On 7 July 1994, the Seimas adopted the Republic of Lithuania Law on Elections to Municipal Councils, which came into force on 13 July 1994. This law has been amended and supplemented more than once, inter alia by: the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 23 December 1996 (it came into force on 31 December 1996) and the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 19 October 1999 (it came into force on 4 November 1999), which set forth this law in a new wording; the Republic of Lithuania Law on Amending and Supplementing Articles 1, 2, 3, 6, 9, 12, 13, 17, 23, 24, 25, 26, 28, 29, 32, 34, 35, 41, 55, 58, 62, 63, 64, 86 and 88 of the Law on Elections to Municipal Councils adopted by the Seimas on 20 June 2002 (it came into force on 3 July 2002); the Republic of Lithuania Law on Amending Article 88 of the Law on Elections to Municipal Councils adopted by the Seimas on 3 April 2003 (it came into force on 1 May 2003); and the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 21 December 2006 (it came into force on 30 December 2006), which set forth this law in a new wording.

It needs to be noted that the Law on Elections to Municipal Councils:

as from 23 December 1996 till 20 June 2002, entrenched a duty of a candidate for a member of the municipal council to make it public if he has been found guilty of committing a crime by an effective judgment of the court of only the Republic of Lithuania and only in the period after 11 March 1990 (Paragraph 3 (wording of 23 December 1996) of Article 91, Paragraph 3 (wording of 19 October 1999) of Article 88);

as from 20 June 2002, established a duty of a candidate for a member of the municipal council to make it public if after 11 March 1990 he has been found guilty of committing a crime by an effective judgment (decision) of the court of not only the Republic of Lithuania but also that of a foreign state, also if he has been found guilty of a serious crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, as well as provided that it is not obligatory to make it public “if the person concerned was found guilty of a crime against the state by a court of the occupation regime” (Paragraph 1 (wording of 20 June 2002) of Article 88);

as from 3 April 2003, additionally established a duty of a candidate for a member of the municipal council to make it public if he has ever been found guilty of not only a serious but also grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, as well as prescribed that a candidate must make public a fact of the respective recognition of having been found guilty of a criminal deed, irrespective of whether the conviction has expired or has been quashed (Paragraph 1 (wording of 3 April 2003) of Article 88 and Paragraph 1 (wording of 21 December 2006) of Article 89).

3. In the context of the constitutional justice case at issue it needs to be noted that the legal norms consolidating the candidate’s duty, which is being disputed in the case at issue, to make it public if he has been found guilty of a criminal deed by the court even in the cases where such a deed was later decriminalised, form a constituent part of the institute of the right to elections not only to municipal councils but also to other political representative institutions, which is entrenched in other laws, as, for instance, the Republic of Lithuania Law on Elections to the Seimas (wordings of 18 July 2000 and 3 April 2003) and the Republic of Lithuania Law on Elections to the European Parliament (wording of 20 November 2003), however, the legal regulation entrenched in other laws is not a matter of investigation in the constitutional justice case at issue.

4. It has been mentioned that the petitioner has had doubts as to whether the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), under which a candidate must make it public if he has been found guilty of a criminal deed by an effective court judgment (decision), even though such a deed was later decriminalised, is not in conflict with the Constitution.

On 30 June 2010, the Seimas adopted the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils, 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. This law came into force on 20 July 2010.

Article 89 “Loss of the Mandate of a Member of the Municipal Council Because of Failure to Disclose to Voters the Previous Conviction Imposed by the Court Judgment (Decision)” of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes:

1. Each candidate must make it public if after 11 March 1990 he has been found guilty of any crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, or if he has ever been found guilty of any serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or a foreign state. The candidate shall indicate such a fact in the questionnaire of a candidate for a member of the municipal council, irrespective of whether the conviction has expired or has been quashed. A poster of a candidate or a poster with a list of candidates issued by the electoral commission must contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment.” Such a note shall not be obligatory if the person concerned was found guilty of a crime against the state by a court of the occupation regime.

2. If the candidate has failed to fulfil the requirements laid down in Paragraph 1 of this Article and there is a court judgment (decision), which has become effective after 11 March 1990, by which the person has been found guilty of a criminal deed, or if the person has at any time been found guilty of a serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, the electoral commission shall not register him as a candidate, and if it has already registered him, the Central Electoral Commission shall immediately cancel the registration. If the candidate has not indicated such a fact and after the election to the municipal council the existence of a judgment (decision) of a court of the Republic of Lithuania or that of a foreign state is established, by which the person has been found guilty of a certain criminal deed, the Central Electoral Commission shall within 15 days terminate his powers of a member of the municipal council. These requirements shall not apply and electoral commissions shall not take the abovementioned actions if the person concerned was found guilty of a crime against the state by a court of the occupation regime.”

Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia the legal regulation entrenched in Paragraph 1 thereof, which is being disputed by the petitioner, has not been subsequently amended and/or supplemented.

5. The purpose of the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), which is being disputed by the petitioner, is to ensure that voters, while deciding on the person’s eligibility to be a member of the municipal council, would receive the information, which could be important to them, about candidates for members of the municipal councils or about the fact that the candidates have been found guilty of criminal deeds by an effective court judgement (decision).

Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) establishes the duty of a candidate for a member of the municipal council to make it public if until 11 March 1990 he had been found guilty of a serious or grave crime by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state, and if, after 11 March 1990, he has been found guilty of any criminal deed; Paragraph 2 of this article provides for the powers of the municipal electoral commission to not register a person who has failed to fulfil the said duty as a candidate for a member of the municipal council, also the powers of the Central Electoral Commission, provided such a person has been registered, to immediately cancel the registration, and if such a person has been elected a member of the municipal council—to terminate within 15 days his powers of a member of the municipal council.

It needs to be noted that, under Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), in the questionnaire of a candidate for a member of the municipal council the candidate must indicate the fact that he has been found guilty, by a court, of the criminal deed referred to in Paragraph 1 of this article, irrespective of whether or not such a deed was later decriminalised, i.e. whether or not it was, from the point of view of criminal law, recognised as not dangerous and not incurring criminal liability, while the poster of a candidate or the poster with a list of candidates issued by the municipal electoral commission, in all cases, irrespective of when and of what precisely criminal deed the person concerned was found guilty by the court, also irrespective of whether or not such a deed has been decriminalised, must contain the following note next to the surname of the candidate concerned: “This person has been found guilty by a court judgment”.

Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) does not establish a duty of candidates for members of municipal councils to inform voters if until 11 March 1990 they had been found guilty by an effective court judgement (decision) of crimes other than those ascribed to serious and grave ones. Neither does it establish a duty to make it public if the person concerned was found guilty of a crime against the state by a court of the occupation regime. It also needs to be noted that the courts of the occupation regime that were functioning in Lithuania until 11 March 1990 must be treated as courts of a foreign state, which had occupied Lithuania.

The duty entrenched in Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) to make public the information about the fact that a candidate has been found guilty of a criminal deed by a court, is not related to conviction, it remains also after the conviction has disappeared (it has expired or has been quashed).

6. The legal regulation entrenched in Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is to be also construed in the context of other provisions of this law.

6.1. Paragraph 4 of Article 2 of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes that a person who has not fulfilled a court-imposed punishment at least 65 days before elections, also a person who has been recognised legally incapable or insane by a court, as well as a citizen of a foreign state whose passive electoral right has been restricted by a court in the state of which he is a citizen, may not be elected as a member of the municipal council.

The said legal regulation, under which a person who has not fulfilled a court-imposed punishment at least 65 days before elections may not be elected as a member of the municipal council, does not deny the right of a person who has been found guilty of a criminal deed by a court to be elected as a member of the municipal council if he has fulfilled a court-imposed punishment (prior to at least 65 days before elections).

6.2. Item 2 of Paragraph 4 and Item 2 of Paragraph 5 of Article 35 of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribe that the municipal electoral commission must receive inter alia a questionnaire of a candidate for a member of the municipal council filled in by the candidate himself, wherein, under Paragraph 12 of this article, a candidate for a member of the municipal council must enter inter alia whether or not there is any non-fulfilled punishment imposed upon him by a court judgement, and where a candidate for a member of the municipal council is a citizen of another state, he must also indicate whether his passive electoral right has not been restricted in the state of which he is a citizen, whether or not he holds any office incompatible with the office of a member of the municipal council, and whether or not he is a member of the elective administration body of another state, and answer the questions indicated in Article 89 of this law. The said questionnaire may also include other additional questions established by the Central Electoral Commission, which the person may leave unanswered.

Thus, the duty of a candidate for a member of the municipal council to make public the information about the fact that he has been found guilty of a criminal deed by the court, which is entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), is to be understood as a duty of a candidate to enter such information in the questionnaire of a candidate for a member of the municipal council.

6.3. Paragraph 4 of Article 36 of the Law on Elections to Municipal Councils (wording of 30 June 2010) provides that after the municipal electoral commission has determined that the submitted application documents meet the requirements of this law, it adopts a decision concerning the registration of a candidate; Paragraph 6 of the same article provides that if following the registration of a candidate the Central Electoral Commission establishes that the candidate concerned does not meet the requirements laid down in Article 2 of this law, or if the candidate refuses to submit the documents inter alia referred to in Item 2 of Paragraph 4 or Item 2 of Paragraph 5 of Article 35 of this law, or he submits inaccurate documents, or fails to submit them within the time limit set by the Central Electoral Commission, the Central Electoral Commission respectively cancels the registration of the candidate concerned or revokes the announcement of the list (joint list) of candidates of that political party.

Thus, a failure to make public the information about the fact that the candidate has been found guilty of a criminal deed by a court, as well as the submission of inaccurate information, provides a ground for inter alia not registering the person as a candidate for a member of the municipal council or cancelling the registration of the candidate.

It needs to be noted that, under Paragraph 1 of Article 19 of the Law on Elections to Municipal Councils (wording of 30 June 2010), one may file a complaint against a decision of the municipal electoral commission not to register a candidate for a member of the municipal council with the Central Electoral Commission (Item 2), and one can file a complaint against decisions of the Central Electoral Commission with the Supreme Administrative Court of Lithuania (Item 3).

7. The legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is to be also construed in the context of the provisions of other laws.

7.1. It has been mentioned that the duty entrenched in Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) to make public the information about the fact that the candidate has been found guilty of a criminal deed by a court is not related to conviction, it remains also after the conviction has disappeared (after it has expired or has been quashed).

In this context it needs to be noted that the notion “conviction” is entrenched in the Criminal Code of the Republic of Lithuania, as approved by the Republic of Lithuania Law on the Approval and Entry into Force of the Criminal Code, which was adopted by the Seimas on 26 September 2000 and came into force on 1 May 2003. Under Paragraph 1 (wording of 26 September 2000) of Article 97 of the Criminal Code, the persons convicted of commission of a crime in respect of whom a judgement of conviction passed by a court of the Republic of Lithuania has become effective are regarded as persons having a previous conviction.

Paragraphs 1 and 6 (wording of 26 September 2000) of Article 97 of the Criminal Code, while construed in conjunction, provide that upon the expiry of the established time limits of conviction, a previous conviction expires and the persons are considered as having no criminal record when the court is imposing a penalty for the commission of a new criminal deed, deciding the issue of the culprit’s release from a penalty or criminal liability, release on parole or replacement of a penalty with a more lenient one, also when identifying the person as a dangerous recidivist.

It needs to be noted that previous conviction determines, in respect of the person, the special penal legal consequences that are provided for only in laws. The expiry of conviction (when the person is no longer considered as having a criminal record from the point of view of criminal justice), however, may not be understood that, purportedly, the very fact of convicting the person has disappeared, nor does it mean that in other areas of legal relations, e.g., when assessing the person’s reputation, one may not take account of whether or not the person has a criminal record.

Consequently, the notions “having a criminal record” and “having a previous conviction” differ in essence: conviction, from the point of view of criminal justice, may expire or be quashed, but the very fact of convicting the person may not, by any means, be quashed and it always remains a fact of the person’s life as well as part of his biography.

Thus, the duty of a candidate for a member of the municipal council, which is entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to indicate in the questionnaire the information about the fact that he has been found guilty by a court of a criminal deed, “irrespective of whether the previous conviction has expired or has been quashed”, is not limited by any time limit or other juridical fact, upon the expiry (taking place) of which the person would no longer be obligated to make public the aforesaid information.

7.2. It has been mentioned that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia provides that a candidate for a member of the municipal council is under no obligation to make it public if he was found guilty of a crime against the state by a court of the occupation regime, and in this case the poster of a candidate or the poster with a list of candidates issued by the municipal electoral commission must not contain the note “This person has been found guilty of a criminal deed by a court judgment” next to the surname of the candidate concerned.

In this context it needs to be noted that, on 2 May 1990, the Supreme Council-Reconstituent Seimas of the Republic of Lithuania adopted the Republic of Lithuania Law “On the Restoration of the Rights of Persons Who Were Repressed for Resistance Against the Occupation Regimes” (it came into force on 9 May 1990). In the preamble to this law it was held that the resistance of the residents of Lithuania to aggression and occupation regimes was not in conflict with national and international law; it was noted that the repressions had been conducted against persons by courts and non-judicial bodies of the USSR, courts of Nazi Germany and land courts, as well as courts of the former Lithuanian SSR; and it was indicated that this law was adopted for the purposes of removing the consequences of the repressions and restoring justice.

This law has been amended and supplemented by: inter alia the Republic of Lithuania Law on Amending the Law “On the Restoration of the Rights of Persons Who Were Repressed for Resistance Against the Occupation Regimes”, which was adopted by the Seimas on 12 March 1998 (it came into force on 25 March 1998) and by means of which this law was set forth in a new wording and given the title of the Republic of Lithuania Law on Restoring the Rights of Persons Repressed for Resistance Against the Occupation Regimes; and the Republic of Lithuania Law on Amending the Law on Restoring the Rights of Persons Repressed for Resistance Against the Occupation Regimes, which was adopted by the Seimas on 13 November 2008 (it came into force on 29 November 2008) and by means of which this law was set forth in a new wording.

The Law on Restoring the Rights of Persons Repressed for Resistance Against the Occupation Regimes (wording of 13 November 2008) inter alia declares that the residents of Lithuania who, both in Lithuania and outside its boundaries, were sentenced by repressive bodies under the Criminal Code of the RSFSR (1926), the criminal laws of other USSR republics, as well as other normative acts of the USSR, the RSFSR and other former Soviet republics, Nazi Germany criminal regulations or local laws (1941-1944) for resistance to aggression and occupying regimes, also sentenced under Articles 62, 63, 66-68, 70, 73, 79-82, 88, 89, 1991, 210, 211 of the Criminal Code of the former Lithuanian SSR and after 11 March 1990 sentenced under Articles 259, 260, 261, 263 of the Criminal Code of the Republic of Lithuania (1961) and corresponding articles of the criminal codes of the former USSR republics, are innocent before the Republic of Lithuania and that all their civil rights are restored (Paragraph 1 of Article 1); the law provides that the aforesaid provision is not applied to persons who participated in the commission of the crimes against humanity and war crimes specified in Chapter XV of the Criminal Code, for which, under Paragraph 5 of Article 95 of the Criminal Code, there is no statute of limitations, as well as to those who participated in killings or torturing of unarmed civilians (Paragraph 1 of Article 2).

Thus, the said law declared the persons repressed (inter alia convicted) for resistance to aggression and occupying regimes to be innocent and provided that all the civil rights of such persons are restored by the decision of the state institutions indicated in the law.

In the context of the constitutional justice case at issue it needs to be noted that the provision entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), whereby it is not obligatory to make it public if a candidate for a member of the municipal council was found guilty of a crime against the state by a court of the occupation regime, is not harmonised with the aforementioned provisions of the Law on Restoring the Rights of Persons Repressed for Resistance Against the Occupation Regimes (wording of 13 November 2008), since the latter law has declared innocent, and has restored all the civil rights of, the persons who were found guilty not of any crime that used to be regarded as a crime against the state at the time of the occupation regime; the aforesaid law has also restored the civil rights of those persons who at the time of the occupation regime were repressed for the certain deeds that were not regarded as crimes against the state (as mentioned, with the exception of persons who participated in the commission of the crimes against humanity and war crimes specified in Chapter XV of the Criminal Code, for which, under Paragraph 5 of Article 95 of the Criminal Code, there is no statute of limitations, also of those who participated in killings or torturing of unarmed civilians).

7.3. It has been mentioned that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) inter alia prescribes that if a candidate has been found guilty by a court (that of the Republic of Lithuania or a foreign state) of a criminal deed referred to in this paragraph, he must make such a fact public, by indicating it in the questionnaire of a candidate for a member of the municipal council, and the poster of a candidate or the poster with a list of candidates issued by the municipal electoral commission must contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment”, irrespective of whether or not such a deed was later decriminalised, i.e. whether or not it was, from the point of view of criminal law, recognised as not dangerous and no longer incurring criminal liability.

It needs to be mentioned that a situation is possible where something what is (was), under the law of a foreign state, regarded as a criminal deed, is not and was not, under the law of the Republic of Lithuania, regarded as being a criminal deed. A situation is also possible where the bringing of the person to criminal liability for the deed that is (was), under the law of a foreign state, regarded as a criminal one would be regarded, under the law of the Republic of Lithuania, as persecution of a political nature.

In this context it needs to be noted that Paragraph 3 of Article 71 “Surrender of Persons from the Republic of Lithuania (Extradition) or Their Transfer to the International Criminal Court” (wording of 14 March 2002) of the Code of Criminal Procedure of the Republic of Lithuania prescribes that a citizen of the Republic of Lithuania or a foreigner may be not surrendered, inter alia where the committed deed, under the Criminal Code of the Republic of Lithuania, is not considered to be a crime or criminal offence (Item 1), also where the person is being persecuted for a crime of a political nature (Item 3).

It also needs to be noted that, on 16 October 1997, the Seimas adopted the Republic of Lithuania Law on the Ratification of the 1970 European Convention on the International Validity of Criminal Judgements, which came into force on 7 November 1997 and by means of which the Seimas ratified (with the declaration and reservations) the 1970 European Convention on the International Validity of Criminal Judgements signed in Strasbourg on 10 July 1995. Paragraph 1 of Article 4 of the said convention stipulates that the sanction shall not be enforced by another Contracting State unless under its law the act for which the sanction was imposed would be an offence if committed on its territory and the person on whom the sanction was imposed liable to punishment if he had committed the act there.

Under the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), even in the cases where the deed, committed by the person who has been found guilty by a court of a foreign state, was not and is not regarded, under the law of the Republic of Lithuania, as a criminal deed, or where the bringing of the person to criminal liability for the said deed is regarded as persecution of a political nature, the person must indicate in the questionnaire of a candidate for a member of the municipal council that he has been found guilty of such a deed (except when the said deed was considered at the time of the occupation regime to be a crime against the state) by a court, and a poster of a candidate or a poster with a list of candidates issued by the municipal electoral commission must contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment.”

8. While construing the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) in the context of other aforementioned provisions, it needs to be noted that:

the fact that the person has been found guilty of a criminal deed does not deny the right of the person to be elected a member of the municipal council if the person concerned has fulfilled the punishment imposed by a court judgement (at least 65 days before elections);

a candidate for a member of the municipal council must make it public if: 1) until 11 March 1990 he had been found guilty of a serious or grave crime by an effective judgment (decision) of a court, with the exception of the cases when the person concerned was found guilty of a crime against the state by a court of the occupation regime (i.e., a court of the foreign state which had occupied Lithuania); 2) after 11 March 1990 he has been found guilty of any criminal deed by an effective judgment (decision) of a court of the Republic of Lithuania or that of a foreign state; in both cases the respective information must be made public even if the aforesaid criminal deeds were later decriminalised;

a candidate for a member of the municipal council is under no obligation to make it public if he was found guilty of a crime against the state by a court of the occupation regime; the law does not provide for any other circumstances as a result of which the person who has been found guilty of the aforementioned criminal deeds (until 11 March 1990—of a serious or grave crime, while after 11 March 1990—of any criminal deed) would be under no obligation to make such facts public;

a candidate for a member of the municipal council must make it public if he has been found guilty of the respective criminal deed by a court of a foreign state even in the cases where that deed, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one, or where the bringing of the person to criminal liability for the said deed is regarded as persecution of a political nature, except for the cases when the deed in question was at the time of the occupation regime considered to be a crime against the state;

no time limit or any other juridical fact is established upon the expiry (taking place) of which the person concerned would no longer be under the obligation to make it public that he has been found guilty of the respective criminal deed;

making public the information about the fact that the person seeking to be elected as a member of the municipal council has been found guilty of a criminal deed by a court means that this person also has an obligation to enter the information indicated in Paragraph 1 of Article 89 of this law in the questionnaire of a candidate for a member of the municipal council, and that the municipal electoral commission has an obligation, in all cases, irrespective of when and of what precisely criminal deed the person concerned was found guilty by the court, also irrespective of whether or not such a deed has been decriminalised, to place in the issued poster of a candidate or the poster with a list of candidates the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment”;

the person must not be registered as a candidate for a member of the municipal council, his registration must be immediately cancelled, and the powers of the elected member of the municipal council must be terminated, if the person concerned has failed to make it public—has failed to indicate in the questionnaire of a candidate for a member of the municipal council—that he has been found guilty of the respective criminal deed by a court (or if he has indicated that information inaccurately); a decision regarding non-registration of the person as a candidate for a member of the municipal council is made by the municipal electoral commission (one may file a complaint against such a decision with the Central Electoral Commission), whereas a decision regarding cancellation of the registration or termination of powers of the elected member of the municipal council—by the Central Electoral Commission (one may file complaints against such decisions with the Supreme Administrative Court of Lithuania).

9. It has been mentioned that the petitioner has had doubts as to whether Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), in the aspect disputed by the petitioner, i.e. to the extent that it prescribes that a candidate must make it public if he has been found guilty, by an effective court judgment (decision), of the criminal deed specified in this paragraph, which was later decriminalised, 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.

In the opinion of the petitioner, the legal regulation consolidated in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010)—under which a poster of a candidate or a poster with a list of candidates, regarding the fact that the candidate has been found guilty of the criminal deed that, under effective laws, is recognised as dangerous and incurring criminal liability, as well as regarding the fact that the candidate has been found guilty of the criminal deed that was later decriminalised, provide for voters the same information which, from the point of view of election law, is to be regarded as negative and may weaken the opportunities of the candidates concerned to be elected and represent the community interests of the respective municipality—may not be justified by the public interest and the aim of informing voters about candidates, and it disproportionately limits the passive electoral right of the permanent residents of a municipality, who have been found guilty of criminal deeds where such deeds were later decriminalised, i.e. such regulation limits the right of the said residents to be elected.

It has been mentioned that making public the information about the fact that the person seeking to be elected as a member of the municipal council has been found guilty of a criminal deed by the court means that this person also has an obligation to enter such information in the questionnaire of a candidate for a member of the municipal council, and that the municipal electoral commission has an obligation to place in the issued poster of a candidate or the poster with a list of candidates the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment.”

Consequently, the petitioner has had doubts as to whether the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), which establishes a duty for a person seeking to be elected as a member of the municipal council to enter in the questionnaire of a candidate for a member of the municipal council if he has been found guilty by an effective court judgement (decision) of the criminal deed specified in this paragraph, even though such a deed was later decriminalised, as well as a duty for the municipal electoral commission to place in the issued poster of a candidate or the poster with a list of candidates the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment”, 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.

10. While deciding whether Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), in the aspect disputed by the petitioner, i.e. to the extent that it prescribes that a candidate must make it public (i.e. indicate in the questionnaire of a candidate for a member of the municipal council) if he has been found guilty by an effective court judgement (decision) of the criminal deed specified in this paragraph, which was later decriminalised, 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, it needs to be noted that, as mentioned, the purpose of the legal regulation entrenched in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is to ensure that voters, while deciding on the person’s eligibility to be a member of the municipal council, would receive the information, which could be important to them, about candidates for members of the municipal councils.

10.1. One of the elements of the constitutional principle of a state under the rule of law is the constitutional principle of proportionality, which also means that the measures provided for in a law must be in line with the legitimate objectives that are important to society, that these measures must be necessary in order to reach the said objectives, and that these measures must not restrain the rights and freedoms of the person clearly more than necessary in order to reach the said objectives (Constitutional Court ruling of 11 December 2009, decision of 20 April 2010, rulings of 29 June 2010, 9 November 2010 and 7 July 2011).

10.2. When construing the provisions of Article 29 of the Constitution, the Constitutional Court has held more than once that the constitutional principle of equality of persons before the law obliges to assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner (Constitutional Court rulings of 3 February 2010, 22 March 2010, decision of 20 April 2010, rulings of 13 May 2010 and 29 June 2010).

10.3. While construing the provisions of Paragraph 2 of Article 34 of the Constitution, the Constitutional Court has held that 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 (Constitutional Court ruling of 11 May 2011); the provision “The right to be elected shall be established <...> by the election laws” of Paragraph 2 of Article 34 of the Constitution means that, under the Constitution, the legislator has powers to establish in the election laws such requirements (conditions) to a person, who may be elected, that are constitutionally grounded (Constitutional Court ruling of 25 May 2004).

It needs to be noted that the right of a person to be elected as a member of the municipal council under the conditions provided for in the law is also consolidated in Article 119 of the Constitution, Paragraph 2 whereof inter alia provides that members of municipal councils are elected on the basis of universal, equal and direct suffrage, and that the provision of Paragraph 3 of the same article, whereby the procedure for the organisation and activities of self-government institutions are established by law, also means that the legislator has an obligation to lay down by law the bases and procedure for the organisation of elections; the formation of the political representative institutions that are provided for in the Constitution is subject to special requirements; a duty arises for the legislator to establish such legal regulation that would ensure the transparency of the election process—a necessary precondition for the trust of voters in the representative institution (Constitutional Court ruling of 11 May 2011).

Elections, including elections to municipal councils, are a political process. The electoral right (both active and passive) is closely related to the right of the citizen of the Republic of Lithuania, entrenched in Article 33 of the Constitution, to participate in the governance of his state (Constitutional Court ruling of 9 February 2007), which is implemented inter alia by participating in the formation of political representative institutions (Constitutional Court ruling of 11 May 2011).

10.4. In the context of the constitutional justice case at issue it needs to be noted that from the provision of Paragraph 2 of Article 34 of the Constitution, whereby the right to be elected is established by the election laws, also the provision entrenched in Paragraph 2 of Article 119 of the Constitution, whereby members of municipal councils are elected on the basis of universal, equal and direct suffrage, and the provision entrenched in Paragraph 3 of the latter article, whereby the procedure for the organisation and activities of self-government institutions are established by law, a duty arises for the legislator to establish, by law, the procedure for elections of municipal councils, inter alia as to what information must be made public to voters by persons seeking to be elected as members of municipal councils, as well as concrete requirements as to how that information must be provided so that voters are informed in a proper way.

10.5. It also needs to be mentioned that, while ensuring the right of citizens to participate in the governance of their state, as entrenched in Paragraph 1 of Article 33 of the Constitution, inter alia through democratically elected representatives, the legislator must create preconditions to reflect the will of voters, inter alia to ensure the transparency of the election process, honest competition among subjects implementing the passive electoral right, as well as the publicity of the information, important to voters, regarding these subjects.

10.6. In the context of the constitutional justice case at issue it needs to be noted that one of the bases for an open, just and harmonious civil society and a state under the rule of law is the constitutional right to receive information, which is entrenched in Article 25 of the Constitution.

The Constitution guarantees and safeguards the interest of the public to be informed (inter alia Constitutional Court rulings of 8 July 2005, 19 September 2005, 29 September 2005 and 21 December 2006). The constitutional right to receive information is an important precondition for implementation of various rights and freedoms of a person entrenched in the Constitution (Constitutional Court ruling of 21 December 2006).

Thus, when construing the provisions of Paragraph 2 of Article 34 and Paragraph 2 of Article 119 of the Constitution in conjunction with the right of the public to receive information, entrenched inter alia in Article 25 of the Constitution, it needs to be noted that the interest of the public to be informed assumes especial importance in the process of elections to political representative institutions, inter alia elections to municipal councils. During the election process real possibilities must be created for persons implementing the active electoral right, who decide on the eligibility of a candidate to be a member of the municipal council, to receive information about the major facts of such person’s life, which may be of significance when representing the interests of voters and handling public affairs. The information about the fact that a person seeking to be elected as a member of the municipal council has been found guilty of a criminal deed by an effective court judgement (decision) is also to be viewed as the information significant to a voter.

It needs to be noted that, when consolidating the duty of a candidate to make it public if he has been found guilty of a criminal deed by the court, the legislator should set concrete requirements as to how such information ought to be presented in a proper manner not misleading voters, inter alia, that a candidate must indicate when, as a result of which precisely criminal deed and by an effective court judgement (decision) of which country, he was found guilty.

10.7. It has been mentioned that, under Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), a candidate for a member of the municipal council must make it public (indicate in the questionnaire of a candidate for a member of the municipal council) if he has been found guilty, by a court, of the criminal deeds specified in this paragraph, even in the cases where these deeds were later decriminalised, i.e. from the point of view of criminal law were recognised as not dangerous and no longer incurring criminal liability, also where the person has been found guilty, by a court of a foreign state, of the criminal deeds specified in this paragraph, which, under the law of the Republic of Lithuania, are not and were not regarded as criminal ones or where the bringing of the person to criminal liability for such deeds is regarded as persecution of a political nature, with the exception of the cases when the deed in question was at the time of the occupation regime considered to be a crime against the state.

The fact that the deed, as a result of committing which the person had been found guilty by a court, was later, under the criminal laws of the Republic of Lithuania, recognised as not criminal (was decriminalised) does not mean that the person concerned may be regarded as having not committed any criminal deed in the past. It also needs to be noted that if the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, it does not mean that the recognition of the person as guilty of such a deed is not an important fact of his life.

Thus, the information about the fact that the persons seeking to be elected as members of municipal councils have been found guilty of the aforementioned criminal deeds by a court—even in the cases where these deeds were later decriminalised, as well as in the cases where the deeds, as a result of which the persons have been found guilty by a court of a foreign state, are not and were not, under the law of the Republic of Lithuania, regarded as criminal ones or where the bringing of persons to criminal liability for such deeds is regarded as persecution of a political nature—is important to voters in deciding on the eligibility of the candidates for the elected positions, as it gives an opportunity to learn about important facts of the life of the candidates, which may be of significance when representing the interests of voters and handling public affairs. It needs to be noted that a person, when indicating in the questionnaire of a candidate for a member of the municipal council the information about the fact that he has been found guilty of a criminal deed by a court, has an opportunity to specify that deed in concrete terms and provide sufficiently broad and comprehensive information in relation to it. In this way adequate preconditions are created for voters to assess properly the said information and decide on the eligibility of the person to be a member of the municipal council.

10.8. The requirement set in Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010) that a person seeking to be elected as a member of the municipal council must provide in the questionnaire of a candidate for a member of the municipal council the information if he has been found guilty of a criminal deed by an effective court judgement (decision), irrespective of whether that deed was later decriminalised, also irrespective of the fact that the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, is in line with the legitimate objective—the interest to be informed when electing members of municipal councils—which is important to society, it does not restrict the rights of a person seeking to be elected as a member of the municipal council more than necessary in order to reach the said objective, it may not be treated as being a disproportionate one, and it does not deny the equal passive electoral right of candidates, which is entrenched in Paragraph 2 of Article 34 of the Constitution, either, therefore, it is a constitutionally grounded one.

10.9. Thus, it needs to be held that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that a candidate must make it public if he has been found guilty, by an effective court judgment (decision), of the criminal deed specified in this paragraph, which was later decriminalised, does not violate the principle of equality of persons before the law, entrenched in Article 29 of the Constitution, the right of a person to be elected, entrenched in Paragraph 2 of Article 34 of the Constitution, the equal passive electoral right of candidates, nor the constitutional principle of a state under the rule of law, inter alia the principles of justice and proportionality arising therefrom.

10.10. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that a candidate must make it public if he has been found guilty, by an effective court judgment (decision), of the criminal deed specified in this paragraph, which was later decriminalised, 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.

11. While deciding whether Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 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 also in the aspect that this paragraph provides that once a person indicates in the questionnaire of a candidate for a member of the municipal council that he has been found guilty, by an effective court judgement (decision), of the criminal deed specified in this paragraph, then the poster of a candidate or the poster with a list of candidates issued by the municipal electoral commission must contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgement”, even though that deed was later decriminalised, it needs to be noted that, as mentioned, under Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), the poster of a candidate or the poster with a list of candidates issued by the municipal electoral commission must contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgement”, irrespective of the fact that such a deed was later decriminalised, also irrespective of the fact that the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, except for the cases when the deed in question was at the time of the occupation regime considered to be a crime against the state.

11.1. It has been mentioned that, while construing the provisions of Paragraph 2 of Article 34 of the Constitution, the Constitutional Court has also held that, under the Constitution, when regulating by law the relations of elections, one must ensure inter alia the equal passive electoral right of all the candidates; the constitutional principle of equality of persons before the law, which is enshrined in Article 29 of the Constitution, obligates to assess homogeneous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner.

11.2. It has also been mentioned that from the provision consolidated in Paragraph 2 of Article 119 of the Constitution, whereby members of municipal councils are elected on the basis of universal, equal and direct suffrage, as well as from the provision consolidated in Paragraph 3 of the same article, whereby the procedure for the organisation and activities of self-government institutions are established by law, a duty arises for the legislator to lay down by law the bases and procedure for the organisation of elections; the legislator must also ensure the transparency of the election process—a necessary precondition for the trust of voters in the representative institution; in addition, while ensuring the right of citizens to participate in the governance of their state inter alia through the democratically elected representatives, the legislator must create preconditions to reflect the will of voters.

11.3. The Constitutional Court has noted that one of the essential elements of the principle of a state under the rule of law established in the Constitution is legal certainty and legal clarity; this imperative of legal certainty and legal clarity implies certain obligatory requirements for the legal regulation: legal regulation must be clear and harmonious, legal norms must be formulated precisely and may not contain any ambiguities (Constitutional Court rulings of 30 May 2003, 26 January 2004, 24 December 2008 and 22 June 2009).

The Constitutional Court has held that an inseparable element of the content of the constitutional principle of a state under the rule of law is the constitutional principle of justice (Constitutional Court rulings of 29 November 2010 and 22 December 2010), which may be implemented by ensuring certain equilibrium of interests (inter alia Constitutional Court ruling of 24 December 2008, decision of 20 April 2010, rulings of 29 June 2010, 29 November 2010 and 22 December 2010).

It has also been mentioned that the principle of proportionality—an element of the constitutional principle of a state under the rule of law—gives rise to the requirement that the measures provided for in a law must be in line with the legitimate objectives which are important to society, that these measures must be necessary to reach the said objectives and may not restrict the rights and freedoms of a person clearly more than necessary in order to reach these objectives.

11.4. In the context of the constitutional justice case at issue it needs to be noted that, when fulfilling its duty, arising from the provisions entrenched in Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 119 of the Constitution, to lay down by law the bases and procedure for the organisation of elections to municipal councils, the legislator has broad discretion inter alia to establish as to what information regarding candidates for members of municipal councils must be provided for voters by institutions organising elections and in what way the said information must be presented. However, this discretion of the legislator is not absolute. When establishing as to what information regarding candidates must be provided by institutions organising elections and in what way that information must be presented, the legislator is obliged to ensure the imperatives stemming from the Constitution, inter alia the equal passive electoral right, the principle of honest competition in elections among subjects implementing the passive electoral right, as well as the principles of transparency of the election process and justice. Thus, when consolidating the duty of institutions organising elections to provide for voters the information about the fact that the candidate has been found guilty of a criminal deed, the legislator should establish as to how such information ought to be properly presented so that voters could decide on the eligibility of the candidate concerned.

11.5. It has been mentioned that, under Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), a duty arises for the municipal electoral commission, in all cases, irrespective of when, as a result of what precisely criminal deed and by an effective court judgement (decision) of what state the person has been found guilty, also irrespective of whether or not the deed in question was later decriminalised, as well as whether or not the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, to place in the issued poster of a candidate or the poster with a list of candidates the same note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment.”

It needs to be noted that the purpose of a poster of a candidate or a poster with a list of candidates is to inform about persons standing as candidates in an election to municipal councils, rather than to provide extensive information about all important facts of the life of candidates.

It also needs to be noted that the legislator must establish that voters ought to be informed about the especially important facts of the life of a candidate for a member of the municipal council (inter alia that the person has been found guilty, by a court, of a deed which, under the law of the Republic of Lithuania, is regarded as criminal), which may be of essential significance to voters in deciding on the eligibility of the candidate for the elected position, by inter alia respectively indicating such facts in a poster of a candidate or a poster with a list of candidates issued by the electoral commission.

11.6. It has been mentioned that the information that the person seeking to be elected as a member of the municipal council has been found guilty, by an effective court judgement (decision), of a criminal deed which was later decriminalised, also that the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, must also be viewed as the information that is significant to a voter.

In this ruling it has been held that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it prescribes that a candidate must make it public (indicate in the questionnaire of a candidate for a member of the municipal council) if he has been found guilty, by an effective court judgment (decision), of the criminal deed specified in this paragraph, which was later decriminalised, 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. It has also been mentioned that, under Paragraph 1 of Article 89 of the same law, a person must indicate in the questionnaire of a candidate for a member of the municipal council if he has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature.

It needs to be noted that the way in which the information regarding persons seeking to be elected as members of municipal councils is made public in the questionnaire of a candidate for a member of the municipal council, on the one hand, and a poster of a candidate or a poster with a list of candidates, on the other hand, differs in essence.

It has been mentioned that a person, when indicating in the questionnaire of a candidate for a member of the municipal council the information that he has been found guilty of a criminal deed by a court, has an opportunity to specify that deed in concrete terms and provide sufficiently broad and comprehensive information in relation to it; in this way adequate preconditions are created for voters to assess properly the said information and decide on the eligibility of the person to be a member of the municipal council.

11.7. Under Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), as mentioned, once a person indicates in the questionnaire of a candidate for a member of the municipal council that he has been found guilty, by a court, of the criminal deed specified in this paragraph, then, in all cases, irrespective of whether or not the deed in question was later decriminalised, also whether or not the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, a duty arises for the municipal electoral commission to place in the issued poster of a candidate or the poster with a list of candidates the same note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment.”

It needs to be noted that there is an essential difference between the criminal deeds that were later decriminalised, also the deeds that are regarded under the law of a foreign state as criminal, but which, under the law of the Republic of Lithuania, are not and were not regarded as criminal or the bringing to criminal liability for which is regarded as persecution of a political nature, on the one hand, and the deeds regarded under the law of the Republic of Lithuania as criminal, on the other hand. Therefore, one is not allowed to establish a duty for institutions organising elections to present in an issued poster of a candidate or a poster with a list of candidates the aforementioned information, which is different in essence, in the same manner, so that there would be no preconditions created for misleading the voters, since the said information regarding candidates, which differs in essence, can be assessed in the same manner as the one characterising negatively the candidates concerned; in this way, one aggravates the possibility for voters to decide rightly on the eligibility of the candidate for the elected position.

Consequently, the legal regulation under which institutions organising elections must, in all cases, inform voters, by placing in an issued poster of a candidate or a poster with a list of candidates the same note “This person has been found guilty of a criminal deed by a court judgment”—both in cases where the deed committed by the person is regarded as criminal as well as where such a deed, under the law of the Republic of Lithuania, is no longer or has never even been regarded as dangerous to society—violates the constitutional principle of equality of persons before the law and does not provide candidates with the conditions of honest competition in elections.

11.8. Thus, it needs to be held that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that a poster of a candidate or a poster with a list of candidates issued by the municipal electoral commission must not contain the following note next to the surname of the candidate: “This person has been found guilty of a criminal deed by a court judgment” where the person has been found guilty by an effective court judgement (decision) of a criminal deed which was later decriminalised, or where the person has been found guilty by the court of a foreign state of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, violates the principle of equality of persons before the law, which is entrenched in Article 29 of the Constitution, the right of a person to be elected, which is entrenched in Paragraph 2 of Article 34 of the Constitution, the principle of the equal passive electoral right of candidates, and the constitutional principle of a state under the rule of law, inter alia the principles of justice, proportionality, legal certainty and legal clarity arising therefrom.

12. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 89 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that a poster of a candidate or a poster with a list of candidates issued by the municipal electoral commission must not contain the following note next to the surname of the candidate: “This person has been found guilty of a criminal deed by a court judgment” where the person has been found guilty by an effective court judgement (decision) of a criminal deed which was later decriminalised, or where the person has been found guilty by the court of a foreign state of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, violates Paragraph 1 of Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.

II

On the compliance of Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) with Paragraphs 1 and 4 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

1. 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 does not provide that the office of a 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.

Thus, the petitioner is disputing the legislative omission, which, in its opinion, exists in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), i.e. the petitioner is disputing something that is not established in this article, even though, according to the petitioner, under the Constitution, it should have been established by the legislator, thus, the petition is disputing such a gap in the legal regulation that, in the opinion of the petitioner, is prohibited by the Constitution.

The Constitutional Court has held that a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor any other legal acts at all, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11 December 2009, 29 September 2010, 29 November 2010, 21 June 2011 and 2 September 2011).

2. It has been mentioned that, on 7 July 1994, the Seimas adopted the Law on Elections to Municipal Councils, which came into force on 13 July 1994. This law has been amended and supplemented: inter alia by the aforementioned Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 23 December 1996 (it came into force on 31 December 1996) and the Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 19 October 1999 (it came into force on 4 November 1999), which set forth this law in a new wording, also by the Republic of Lithuania Law on Supplementing and Amending Articles 86 and 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 adopted by the Seimas on 28 January 2003 (it came into force on 25 February 2003), the Republic of Lithuania Law on Amending Articles 35, 86 and 881 of the Law on Elections to Municipal Councils adopted by the Seimas on 25 March 2004 (it came into force on 16 April 2004), the Republic of Lithuania Law on Amending Article 87 of the Law on Elections to Municipal Councils adopted by the Seimas on 11 May 2004 (it came into force on 22 May 2004), as well as the aforementioned Law on Amending the Law on Elections to Municipal Councils adopted by the Seimas on 21 December 2006 (it came into force on 30 December 2006), which set forth this law in a new wording, and the Republic of Lithuania Law on Amending Article 90 of the Law on Elections to Municipal Councils adopted by the Seimas on 25 May 2010 (it came into force on 1 July 2010).

3. It needs to be noted that in the Law on Elections to Municipal Councils:

until 28 January 2003, it had not been provided that a member of the council, who has moved to or has not renounced the office incompatible with the office of a member of the municipal council, loses his mandate, nor had one specified any positions incompatible with the office of a member of the municipal council;

the list of positions incompatible with the office of a member of the municipal council, entrenched from 28 January 2003 (in Article 881 (wordings of 28 January 2003 and 25 March 2004), as well as Article 90 (wordings of 21 December 2006 and 25 May 2010), which inter alia included the position of a state servant of the municipal administration, however, although that list has been several times expanded (by the aforementioned laws of 25 March 2004 and 21 December 2006 adopted by the Seimas) by including more positions incompatible with the office of a member of the municipal council, it has not included the office of the head of the secretariat of the municipal council, nor the position of any other person working in the secretariat of the municipal council.

4. It has been mentioned that, on 30 June 2010, the Seimas adopted the Law on Amending the Law on Elections to Municipal Councils (which came into force on 20 July 2010), by Article 1 whereof it amended the Law on Elections to Municipal Councils (wording of 21 December 2006) and set it forth in a new wording.

Article 90 “Office Incompatible with the Office of a Member of the Municipal Council, and the Loss of the Mandate of a Member of the Municipal Council” of the Law on Elections to Municipal Councils (wording of 30 June 2010), the legal regulation entrenched in Paragraph 1 whereof is being disputed by the petitioner, prescribes:

1. The office of a member of the municipal council shall be incompatible with the office of the President of the Republic, a Member of the Seimas, a Member of the European Parliament or a member of the Government, 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, the State Controller and his deputies. Moreover, the office of a 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 a joint-stock company of that municipality, the office of a member of the collegiate management body (board) of a company controlled by that municipality, or the office of the head of a company controlled by that municipality.

2. If a person holding the office incompatible, under the Constitution, this law or other laws, with the office of a member of the municipal council, is elected as a member of the municipal council, he must decide and renounce the abovementioned office or a mandate of an elected member of the municipal council. An elected member of the municipal council who decides to renounce the mandate of a member of the municipal council shall, no later than 10 days before the first meeting of the municipal council, submit to the Central Electoral Commission personally or by mail a notarised statement concerning the renouncement of the mandate of an elected member of the municipal council. Upon the receipt of this statement, the Central Electoral Commission, in the capacity of the mandates commission, shall, no later than seven days before the first meeting of the municipal council, take a decision regarding the loss of the mandate of the elected member of the municipal council and the recognition of the mandate for a new member of the municipal council. Candidates of the post-electoral list of candidates for a vacant seat of a member of the municipal council, who decide to renounce the mandate of an elected member of the municipal council, must also submit to the Central Electoral Commission statements concerning the renouncement of the mandate of a member of the municipal council no later than seven days before the first meeting of the municipal council. If an elected member of the municipal council fails to notify the Central Electoral Commission no later than 10 days before the first meeting of the municipal council that he renounces the office incompatible with the office of a member of the municipal council, the Central Electoral Commission, in the capacity of the mandates commission, shall, no later than seven days before the first meeting of the municipal council, take a decision on the loss of the mandate of this member of the municipal council.”

It needs to be noted that the provision of Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) regarding the incompatibility of the office of a member of the municipal council with the position of a state servant of political (personal) confidence of the mayor of that municipality and the position of an employee working under the employment contract in the administration of that municipality is applied to the members of municipal councils elected after the entry into force of the Republic of Lithuania Law on Amending the Law on Elections to Municipal Councils, which was adopted on 30 June 2010 (Article 2 of this law).

In the context of the constitutional justice case at issue it needs to be noted that the legal regulation entrenched in Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), if compared to the one entrenched in Article 881 (wordings of 28 January 2003 and 25 March 2004) of the Law on Elections to Municipal Councils and Article 90 (wordings of 21 December 2006 and 25 May 2010) of the Law on Elections to Municipal Councils, has not changed in the disputed aspect, i.e. although the list of positions incompatible with the office of a member of the municipal council, which is entrenched therein, has been expanded, inter alia by including not only the position of a state servant of the municipal administration, but also the position of a state servant of political (personal) confidence of the mayor of the municipality as well as the position of an employee working under the employment contract in the municipal administration, one has not included among the said positions the office of the head of the secretariat of the municipal council (nor the positions of any other persons working in the secretariat).

Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia the disputed legal regulation entrenched in Paragraph 1 thereof, has not been amended and/or supplemented.

5. While construing the legal regulation entrenched in Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), it needs to be noted that Paragraph 1 of this article provides a final list of positions incompatible with the office of a member of the municipal council.

It has been mentioned that the list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), inter alia includes the position of a state servant of political (personal) confidence of the mayor of the municipality, the position of a state servant of the municipal administration as well as the position of an employee working under the employment contract in the municipal administration, but one has not indicated in this list the office of the head of the secretariat of the municipal council (nor the positions of any other persons working in the secretariat).

Paragraph 2 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) prescribes that if a person holding the office incompatible, under the Constitution, this law or other laws, with the office of a member of the municipal council is elected as a member of the municipal council, he must decide and renounce the said office or a mandate of an elected member of the municipal council, and where the person fails to do so, the Central Electoral Commission, no later than seven days before the first meeting of the municipal council, takes a decision regarding the loss of the mandate of this member of the municipal council (under the provisions of Paragraphs 1 and 3 of Article 87 of this law, the Central Electoral Commission, within 15 days from the day the person takes up the office incompatible with the office of a member of the municipal council and does not resign from such office, declares the powers of the member of the municipal council discontinued before the expiration of his term of office).

6. The disputed legal regulation laid down in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) is related to the legal regulation established in the Republic of Lithuania Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments and supplements), which consolidates the system of municipal institutions and the institutions and establishments formed by and accountable to municipal institutions as well as the powers of the state servants and persons employed under the employment contract who work in the said institutions and establishments.

6.1. Paragraphs 1 and 3 of Article 3 of the Law on Local Self-government (wording of 15 September 2008) prescribe:

1. Municipality means an administrative unit of the territory of the state, defined by law, the community of which has the right to self-government guaranteed by the Constitution and implemented through a municipal council elected by the permanent residents of that administrative unit of the territory of the state and through an executive institution as well as other institutions and establishments of a municipality, which are formed by the latter and are accountable to it. A municipality shall be a public legal person.”;

3. Municipal institutions means the following institutions responsible for the implementation of the right to self-government in the interests of the municipal community:

1) a representative institution of the municipality—the municipal council that possesses the rights and duties of local government and public administration;

2) an executive institution of the municipality (executive institutions)—the director of the municipal administration, deputy director(s) of the municipal administration (if this/these position(s) is/are set up and if the powers of an executive institution are delegated to this/these position(s)), who possess the rights and duties of public administration.”

It needs to be noted that, under the Law on Local Self-government (wording of 15 September 2008), the municipal council elects the mayor, who is accountable to the municipal council (Item 2 of Paragraph 2 of Article 16, Paragraph 1 of Article 20).

The Law on Local Self-Government (wording of 15 September 2008) also provides that the municipal council, on the recommendation of the mayor, takes a decision concerning the formation (establishment) of the secretariat of the municipal council (Item 11 of Paragraph 2 of Article 16, Item 7 of Paragraph 2 of Article 20).

Thus, under the Law on Local Self-Government (wording of 15 September 2008), the right to self-government is implemented through the representative institution of the municipality—the municipal council, which forms an executive institution (executive institutions) of the municipality accountable to the municipal council—the director of the municipal administration and deputy director(s) of the municipal administration.

It needs to be noted that the municipal council may also form other municipal institutions and establishments accountable to it, inter alia the secretariat of the municipal council.

6.2. The Law on Local Self-Government (wording of 15 September 2008) provides that the secretariat of the municipal council is an institution which is, on the proposal of the mayor (Item 7 of Paragraph 2 of Article 20), formed (established) by the municipal council (Item 11 of Paragraph 2 of Article 16) (which also approves an estimate of expenditure of the secretariat (Paragraph 14 of Article 19) and which is directly subordinate to the mayor (who guides the work of the secretariat, approves regulations of the secretariat, appoints and dismisses the head of the secretariat as well as the state servants and employees composing the secretariat (Items 8 and 9 of Paragraph 2 of Article 20).

Thus, the secretariat of the municipal council, which is to be regarded as being accountable to the municipal council and the mayor (the head of the secretariat of the municipal council and persons working in the secretariat are directly subordinate to the mayor of the municipality, who is accountable to the municipal council), is an institution formed by the municipal council, which is to be ascribed to the system of municipal institutions.

It needs to be mentioned that Paragraph 14 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) inter alia provides that, in the event a secretariat is not formed, the mayor may, for the duration of the term of office, have state servants of political (personal) confidence.

6.3. It needs to be noted that Paragraph 14 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) inter alia provides that the secretariat of the municipal council provides services for sittings of the municipal council, the committees, the mayor, as well as prepares, considers draft decisions of the municipal council and prepares draft conclusions regarding decisions of the municipal council.

Thus, functions of the secretariat of the municipal council are directly related to the adoption of decisions of the municipal council and the mayor.

It needs to be noted that, under Paragraph 14 of Article 19 of the Law on Local Self-Government (wordings of 15 September 2008 and 19 April 2011), the financial, economic and material servicing of members of the municipal council, the mayor, as well as the secretariat of the municipal council, is carried out by the municipal administration.

6.4. Under the Law on Local Self-Government (wording of 15 September 2008), the secretariat of the municipal council may be formed from employees of the secretariat appointed to the position by the mayor in accordance with the procedure laid down by the Republic of Lithuania Law on the State Service and the Republic of Lithuania Labour Code (Item 8 of Paragraph 2 of Article 20), i.e. state servants of political (personal) confidence, career state servants and employees working under the employment contract (Paragraph 14 of Article 19).

It needs to be mentioned that Paragraph 1 (wording of 4 December 2007) of Article 8 of the Law on the State Service inter alia provides that this law establishes a list of uniform positions of state servants (Annex 3), and Paragraph 9 (wording of 23 April 2002) of the same article inter alia prescribes that a list of positions of state servants of municipal institutions and establishments may include only those positions of state servants that are indicated in the list of uniform positions of state servants or the ones that are provided for by other laws. Under the List of Uniform Positions of State Servants entrenched in Annex 3 (wordings of 2 December 2009, 25 May 2010 and 2 July 2010) of the Law on the State Service, the office of the head of the secretariat of the municipal council is ascribed to the position of a career state servant.

Thus, it needs to be noted that, under the Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments and supplements), in the secretariat of the municipal council the following persons may work: the head of the secretariat of the municipal council (a career state servant of the secretariat of the municipal council), other career state servants of the secretariat of the municipal council, state servants of political (personal) confidence and employees working under the employment contract, who are appointed (admitted) to positions by the mayor.

6.5. The list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), as mentioned, inter alia includes the position of a state servant of political (personal) confidence of the mayor of a municipality, which covers positions of the state servants of political (personal) confidence of the mayor who work in the secretariat of the municipal council.

Consequently, the positions of the state servants of political (personal) confidence of the mayor who work in the secretariat of the municipal council are included in the list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010).

It needs to be emphasised that the positions of the head of the secretariat of the municipal council, other career state servants of the secretariat of the municipal council, as well as employees working in the secretariat of the municipal council under the employment contract, may not be ascribed to the positions of a state servant of the municipal administration and an employee working in the municipal administration under the employment contract, which are indicated in the list of positions incompatible with the office of a member of the municipal council entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), since the secretariat of the municipal council is not a sub-division of the municipal administration.

Thus, the positions of the head of the secretariat of the municipal council, other career state servants of the secretariat of the municipal council and employees working under the employment contract in the secretariat of the municipal council are not included in the list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010).

It needs to be noted that other laws, inter alia the Law on Local Self-Government (wording of 15 September 2008), also do not provide that the head of the secretariat of the municipal council or other career state servants of the secretariat of the municipal council and employees working under the employment contract in the secretariat of the municipal council may not be members of the council of the municipality in which they work.

7. While construing the legal regulation entrenched in Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) in conjunction with the aforementioned legal regulation entrenched in other laws in the aspect disputed by the petitioner, it needs to be noted that:

the said paragraph of Article 90 establishes a final list of positions incompatible with the office of a member of the municipal council;

under the Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments and supplements), the secretariat of the municipal council is an institution formed by the municipal council, which is accountable to the municipal council and the mayor and the functions of which are directly related to the adoption of decisions of the municipal council and the mayor;

the positions of the state servants of political (personal) confidence of the mayor who work in the secretariat of the municipal council are included in the list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010);

the positions of the head of the secretariat of the municipal council, other career state servants of the secretariat of the municipal council and employees working under the employment contract in the secretariat of the municipal council are not included in the list of positions incompatible with the office of a member of the municipal council, which is entrenched in Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010).

8. While deciding whether Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that the office of a 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, it needs to be emphasised that, as mentioned, under the Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments and supplements), the secretariat of the municipal council is an institution formed by the municipal council, the functions of which are directly related to the adoption of decisions of the municipal council and the mayor, and which is accountable to the municipal council and the mayor, however, the disputed provision does not provide that the office of a member of the municipal council is not compatible with the positions of the head of the secretariat of the municipal council, other career state servants of the secretariat of the municipal council and employees working under the employment contract in the secretariat of the municipal council.

8.1. The Constitution provides for two types of municipal institutions: Paragraph 1 of Article 119 of the Constitution indicates municipal councils (representative institutions), and Paragraph 4 of the same article refers to executive institutions, which are accountable to the former.

Still, municipal councils, which implement the right to self-government guaranteed by the Constitution, may also form other municipal institutions that have authoritative powers, as well as other municipal establishments (Constitutional Court rulings of 24 December 2002, 13 December 2004 and 31 March 2010).

8.2. It needs to be emphasised that the content of the constitutional principle of a state under the rule of law is to be disclosed while taking account of various provisions of the Constitution, while assessing all the values entrenched in, and protected and defended by the Constitution, and while taking account of various other constitutional principles, inter alia the sovereignty of the Nation, democracy, responsible governance, limitation of powers of state authority, service of state institutions to the people, justice, public spirit, equality of persons before the law, respect to and protection of the human rights and freedoms, and adjustment of interests of the person and society (Constitutional Court ruling of 13 December 2004); account is also to be taken of the imperative of legal certainty and legal clarity, which implies certain obligatory requirements for legal regulation (Constitutional Court rulings of 30 May 2003, 26 January 2004, 24 December 2008 and 22 June 2009).

8.3. It needs to be noted that the Constitutional Court, while construing the principle of the constitutional incompatibility of the office of a member of the municipal council with certain positions, has held that:

under the Constitution, “members of municipal councils may not be unequal according to their legal status” (Constitutional Court rulings of 24 December 2002 and 30 May 2003); this constitutional requirement would be violated if a member of the municipal council were a person who, under the Constitution and laws, would enjoy powers to take the decisions that might determine the adoption and implementation of decisions of municipal councils within the competence defined in the Constitution and laws (Constitutional Court decision of 11 February 2004);

officials of the institutions accountable to the municipal council may not at the same time be members of municipal councils (Constitutional Court ruling of 30 May 2003); the said provision means that, if the laws provide that the heads of municipal establishments and enterprises or their officials are accountable to the municipal councils for the activities of their or other respective establishments and enterprises, then they may not at the same time be members of the municipal councils. Otherwise, the right of municipal councils (as representations of territorial communities) to supervise the activities of the establishments and enterprises (their heads and officials) that are accountable to them would be distorted, since there would emerge a legal situation where the heads or officials of the establishments and enterprises accountable to the municipal councils would supervise themselves (their own activity) and would be accountable to themselves (Constitutional Court decision of 13 February 2004);

while deciding whether a certain state official is to be attributed to the state officials who have the right to adopt decisions upon which the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws would be dependent, and who, due to this, may not at the same time be members of municipal councils, one must assess in every particular case the content of powers established to them in the Constitution and laws (Constitutional Court decisions of 11 and 13 February 2004).

8.4. In the context of the constitutional justice case at issue it needs to be noted that from the Constitution, inter alia the principles of the organisation and activities of self-government institutions entrenched in Paragraphs 1 and 4 of Article 119 thereof, a duty arises for the legislator to establish that members of municipal councils may not take up in respective municipal institutions such positions while holding which they would have the powers to decide the questions related to the adoption and implementation of decisions of the municipal council, would be accountable to the municipal council and/or directly subordinate to certain members of the municipal council, as, for example, the mayor. Otherwise, one would violate the principles of equality of the legal status of members of municipal councils, accountability of municipal institutions to the municipal council that forms them, and supremacy of municipal councils in respect to the municipal institutions that are accountable to them, which are entrenched in Paragraphs 1 and 4 of Article 119 of the Constitution.

8.5. It has been mentioned that, under the Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments and supplements), the secretariat of the municipal council is an institution formed by the municipal council, the functions of which are directly related to the adoption of decisions of the municipal council and the mayor.

Thus, the office of a member of the municipal council is incompatible with the office of the head of the secretariat of that municipal council, nor the positions of other persons working in the secretariat of that municipal council, i.e. state servants of political (personal) confidence of the mayor of the municipality, career state servants and employees working under the employment contract, since, otherwise, one would distort the right of municipal councils to supervise activities of the institutions that are accountable to them and would violate the principles of the organisation and activities of self-government institutions entrenched in Paragraphs 1 and 4 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

8.6. In its ruling of 19 January 2005, while construing the powers of the legislator arising from the constitutional principle of a state under the rule of law to establish the positions incompatible with the office of a member of the municipal council, the Constitutional Court inter alia held that:

the legislator, when establishing positions incompatible with the office of a member of the municipal council, may choose various ways of legal text wording, formulation of legal norms and other provisions, inter alia to formulate the said provisions by setting in a single law a final list of the positions incompatible with the office of a member of the municipal council, which would name each of the positions incompatible with the office of a member of the municipal council separately and precisely;

a legal situation may also emerge where the said list, established in a single law, fails to include all the positions incompatible with the office of a member of the municipal council under various other laws; thus, there could always be doubts whether a given list is actually a final one, i.e. exhaustive, and whether a relevant legal regulation established in the law is in compliance with the Constitution; therefore, in order to ensure the consistency and harmony of the legal regulation, it would be much better to provide in a respective law, and formulate therein in a more generalised way, the criteria, according to which certain positions are ascribed to those incompatible with the office of a member of the municipal council;

while establishing, by law, the positions incompatible with the office of a member of the municipal council, it is necessary to heed the imperatives of the Constitution, also it is necessary to establish, by law, such procedure for the control of compatibility of positions so that in case uncertainties arise whether or not a certain person may, under the Constitution, hold a certain position and at the same time be a member of the municipal council, it would always be possible to decide efficiently whether, under the Constitution, certain positions are incompatible with the office of a member of the municipal council.

8.7. In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution, inter alia the principles of the organisation and activities of self-government institutions, entrenched in Paragraphs 1 and 4 of Article 119 thereof, as well as the constitutional principle of a state under the rule of law and the imperative of legal certainty and legal clarity arising therefrom, the legislator has discretion to consolidate a final list of the positions incompatible with the office of a member of the municipal council or/and set the criteria according to which certain positions are ascribable to positions incompatible with the office of a member of the municipal council. If the legislator decides that the positions incompatible with the office of a member of the municipal council are to be indicated in a final list, an obligation arises for it to enumerate in such a list all the positions incompatible with the office of a member of the municipal council.

8.8. In this ruling it has been held that, under the Constitution, inter alia the principles of the organisation and activities of self-government institutions entrenched in Paragraphs 1 and 4 of Article 119 thereof, as well as the constitutional principle of a state under the rule of law, the office of a member of the municipal council is incompatible with the office of the head of the secretariat of that municipal council, nor the positions of other persons working in the secretariat of that municipal council, inter alia those of career state servants and employees working under the employment contract.

It needs to be noted that the legislator has chosen the option where the positions incompatible with the office of a member of the municipal council are indicated in a final list.

It has been mentioned that from the constitutional principle of a state under the rule of law a duty arises for the legislator, if it has indicated the positions incompatible with the office of a member of the municipal council in a final list, to enumerate all the positions that are incompatible with the office of a member of the municipal council.

It has also been mentioned that Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010) establishes a final list of the positions incompatible with the office of a member of the municipal council, which inter alia includes the positions of the state servants of political (personal) confidence of the mayor of the municipality who work in the secretariat of the municipal council, however, this list does not include the office of the head of the secretariat of the municipal council, nor the positions of other career state servants of the secretariat of the municipal council and employees working under the employment contract in the secretariat of the municipal council (and the latter positions may not be ascribed to the positions of a state servant of the municipal administration or an employee working under the employment contract in the municipal administration, which are indicated in the said list).

Thus, it needs to be held that Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that the office of a member of the municipal council is incompatible with the office of the head of the secretariat of that municipal council, nor the positions of a career state servant of the secretariat of that municipal council and an employee working under the employment contract in the secretariat of that municipal council, violates the principles of the organisation and activities of self-government institutions, entrenched in Paragraphs 1 and 4 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law.

9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 of Article 90 of the Law on Elections to Municipal Councils (wording of 30 June 2010), to the extent that it does not provide that the office of a member of the municipal council is incompatible with the office of the head of the secretariat of that municipal council, nor the positions of a career state servant of the secretariat of that municipal council and an employee working under the employment contract in the secretariat of that municipal council, violates Paragraphs 1 and 4 of Article 119 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 Paragraph 1 of Article 89 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 it prescribes that a candidate must make it public if he has been found guilty, by an effective court judgment (decision), of the criminal deed specified in this paragraph, which was later decriminalised, is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 1 of Article 89 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 it does not provide that a poster of a candidate or a poster with a list of candidates issued by a municipal electoral commission must not contain the following note next to the surname of the candidate concerned: “This person has been found guilty of a criminal deed by a court judgment” where the person has been found guilty by an effective court judgement (decision) of a criminal deed which was later decriminalised, or where the person has been found guilty, by a court of a foreign state, of a deed which, under the law of the Republic of Lithuania, is not and was not regarded as a criminal one or the bringing to criminal liability for which is regarded as persecution of a political nature, violates Article 29 and Paragraph 2 of Article 34 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that Paragraph 1 of Article 90 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 it does not provide that the office of a member of the municipal council is incompatible with the office of the head of the secretariat of that municipal council, nor the positions of a career state servant of the secretariat of that municipal council and an employee working under the employment contract in the secretariat of that municipal council, violates 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 ruling of the Constitutional Court is final and not subject to appeal.

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

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