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On the establishment and abolishment of municipalities, the determination and changing of their territorial boundaries and centres

Case No. 9/2000

 

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of the Republic of Lithuania’s Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Republic of Lithuania’s Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries with the Constitution of the Republic of Lithuania, as well as on the compliance of the Resolution of the Government of the Republic of Lithuania (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999 with the Constitution of the Republic of Lithuania, Articles 7 and 13 of the Republic of Lithuania’s Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Republic of Lithuania’s Law on Local Self-Government (wording of 17 November 1998)

Vilnius, 28 June 2001

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Seimas members Vytenis Povilas Andriukaitis and Petras Papovas, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Romualdas Varslauskas, a senior consultant at the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Adolfas Norkūnas, Head of the Self-Government Policy Division of the Public Administration Department of the Ministry of the Interior of the Republic of Lithuania, and Nerijus Rudaitis, Head of the Legal Expert Examination Division of the Law Department of the same ministry, acting as the representatives of the Government of the Republic of Lithuania, a party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 6 and 18 June 2001, in its public hearing considered case No. 9/2000 subsequent to the petition submitted to the Constitutional Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into the compliance of the Republic of Lithuania’s Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, the Republic of Lithuania’s Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Republic of Lithuania’s Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries with Paragraph 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania, as well as into the compliance of the Resolution of the Government of the Republic of Lithuania (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999 with Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania, Articles 7 and 13 of the Republic of Lithuania’s Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Republic of Lithuania’s Law on Local Self-Government (wording of 17 November 1998).

The Constitutional Court

has established:

I

On 29 November 1999, the Government adopted the Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries”, which the Constitutional Court received together with the petition. On 21 December 1999, the Seimas passed the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (Official Gazette Valstybės žinios, 1999, No. 109-3176), the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (Official Gazette Valstybės žinios, 1999, No. 109-3177), and, on 12 January 2000, it passed the Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (Official Gazette Valstybės žinios, 2000, No. 6-154).

The petitioner—a group of Seimas members—requests the Constitutional Court to consider whether

1) the Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” (hereinafter also referred to as the impugned resolution) adopted by the Government on 29 November 1999 is in compliance with Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution, Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998);

2) the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, both of which were passed by the Seimas on 21 December 1999, as well as the Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, which was passed by the Seimas on 12 January 2000, are in compliance with Paragraph 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

II

The request of the petitioner is based on the following arguments.

Article 7 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) provides that the municipalities shall be established and abolished, as well as their boundaries and centres shall be set and changed by the Seimas on the proposal of the Government, and that prior to addressing the Seimas, the Government shall take into consideration the opinion of the community of the residential area, the proposals of the municipal council, shall organise the opinion poll of local residents and shall adopt a decision regarding the proposal to the Seimas. Article 13 of the said law provides that the institution empowered by the Government shall consider and present conclusions to the Government on the proposals to establish or abolish municipalities, other administrative units of the territory and residential areas and to set or change their boundaries and that the institution empowered by the Government, when presenting a conclusion on the establishment of administrative units, setting or changing their boundaries, shall present the results of the opinion poll of the local residents, their requests and the proposals of the municipal council, and shall assess the reasonableness and expediency of the opinion of the community of the residential area and the municipal council. The petitioner maintains that the institution empowered by the Government, i.e. the Ministry of Public Administration Reforms and Municipal Affairs, neither requested nor received proposals form municipal councils as regards changing the boundaries of municipalities, nor did it organise any opinion polls of local residents under the procedure established by the Government.

In the opinion of the petitioner, the Government adopted the impugned resolution without following the provisions of Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999).

The petitioner also points out that the Government adopted the resolution to submit draft laws to the Seimas concerning changing the boundaries of municipalities in the absence of any proposals of municipal councils and that it did not grant an opportunity for citizens to take part in the opinion poll under the procedure established by the Government, therefore, in the opinion of the petitioner, the impugned resolution may also be in conflict with Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) and Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

The petitioner maintains that the Seimas adopted the impugned laws without following the procedures provided for in Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), therefore, there are doubts whether the impugned laws are in compliance with Item 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned—the Seimas—B. Kleponis, an advisor to the Seimas Committee on State Administration and Local Authorities, and Romualdas Varslauskas, a senior consultant at the Legal Department of the Office of the Seimas.

1. B. Kleponis explained that a legal act establishing procedures of enactment of laws at the Seimas is the Statute of the Seimas. Adopting the impugned laws, the Seimas did not violate the procedures provided for in the Statute of the Seimas. The impugned laws do not limit the rights of citizens to participate in elections to the Seimas, elections of the President of the Republic of Lithuania, elections to municipal councils and referendums, they do not limit the rights of citizens to join into societies or associations, to criticise the work of state institutions and their officials, and to appeal against their decisions, they do not establish any limitations on serving in a state office. In the course of the preparation of the papers on the administrative reform of the territory of the Republic of Lithuania, the Seimas and the Government did not limit and did not attempt to limit the rights of municipalities to state their opinion as regards the new administrative territorial units of the Republic of Lithuania.

In the opinion of B. Kleponis, the impugned laws are in compliance with Paragraph 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

2. R. Varslauskas noted that the impugned resolution was adopted by following the laws properly. Under Paragraph 2 of Article 96 of the Constitution, the then Minister of Public Administration Reforms and Municipal Affairs was heading the area of administration commissioned to him, he was responsible to the Seimas, the President of the Republic of Lithuania and directly subordinate to the Prime Minister. Presenting the draft impugned laws in the Seimas sitting, the Minister maintained that the opinion of the communities had been analysed very carefully. Thus, there are not any sufficient grounds to assert that the impugned resolution is in conflict with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998), as well as Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

R. Varslauskas also emphasised that the impugned laws were adopted under the procedure established in the Statute of the Seimas, therefore, there are no legal grounds to maintain that they were adopted in violation of Paragraph 1 of Article 69 of the Constitution. By means of the impugned laws the Seimas changed the administrative units and their boundaries and established the procedure of the implementation of such changing. Therefore, such legal treatment does not deny the provisions of Paragraph 1 of Article 33, Paragraph 1 of Article 69 and Paragraph 2 of Article 120 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned—the Government—A. Norkūnas and N. Rudaitis.

In the opinion of the representatives of the Government, the provision consolidated in Article 7 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) by which the Government, prior to addressing the Seimas, shall take into consideration the opinion of the community of the residential area, the proposals of the municipal council, shall organise the opinion poll of local residents and shall adopt a decision regarding the proposal to the Seimas means that the Government must take account of the proposals, if there are any, of the municipal council, while the question whether to present proposals to the Government is decided by the municipal council itself. Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) provides for the right of the municipal council to submit proposals concerning the altering of the limits of the municipal territory. There are not any provisions in laws which would obligate the Government to demand proposals from municipal councils. However, the representatives of the Government noted that the Ministry of Public Administration Reforms and Municipal Affairs requested that municipal councils submit their proposals, it questioned municipalities as for the administrative units reform, i.e. as regards establishment of new municipalities, setting and changing their boundaries. Such proposals were received and they were examined.

The representatives of the Government also pointed out that, on 2–7 March 1999, the Market and Opinion Research Centre “Vilmorus” conducted the opinion poll of the residents concerning establishment of new municipalities as per order of the Ministry of Public Administration Reforms and Municipal Affairs.

According to A. Norkūnas and N. Rudaitis, the impugned resolution is in compliance with Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution, as well as Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998).

V

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the specialists—Dr. E. Šileikis, senior assistant at the Department of Public Law of the Faculty of Law, Vilnius University, and Assoc. Prof. Dr. R. Stačiokas who works at the Accounting Department of the Economics and Management Faculty, Kaunas Technological University.

VI

1. In the Constitutional Court hearing the representatives of the petitioner V. P. Andriukaitis and P. Papovas virtually reiterated the arguments set down in the petition.

2. In the Constitutional Court hearing the representative of the party concerned—the Seimas—R. Varslauskas and the representatives of the party concerned—the Government—A. Norkūnas and N. Rudaitis virtually reiterated the arguments set down in their written explanations.

3. In the Constitutional Court hearing the specialist Assoc. Prof. Dr. V. Gaidys, Director of the Market and Opinion Research Centre “Vilmorus” spoke who explained the procedure of the opinion poll of the local residents, which was conducted on 2–7 March 1999.

The Constitutional Court

holds that:

I

1. On 29 November 1999, the Government adopted the Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” wherein the following is established:

1. To approve the draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and submit them to the Seimas for consideration.

2. To request that the Seimas of the Republic of Lithuania consider the aforesaid draft laws under the urgency procedure.”

On 21 December 1999, the Seimas adopted the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries by means of which the Seimas established new municipalities, abolished one municipality that had existed until then, and changed the boundaries of certain former municipalities and their centres. On the same day the Seimas passed the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries.

On 12 January 2000, the Seimas adopted the Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries by means of which it established the territories and boundaries of certain municipalities.

2. The petitioner—a group of Seimas members—doubts whether the impugned resolution of the Government is in conformity with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) and Paragraph 1 of Article 33, Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution, as well as whether the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries are in compliance with Paragraph 1 of Article 33, Paragraph 1 of Article 69 and Paragraph 2 of Article 120 of the Constitution.

3. The petitioner maintains that the Government adopted the impugned resolution without following the procedure provided for in Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and that provided for in Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998), i.e. it did not request and did not receive any proposals from municipal councils as regards changing the boundaries of municipalities, nor did it organise opinion polls of local residents under the procedure established by the Government.

On the basis of the same arguments, the petitioner points out that on the grounds of the aforementioned resolution the Seimas adopted the impugned Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the impugned Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries.

Thus, the petitioner doubts whether in the course of the enactment of the impugned legal acts the procedure of their enactment was not violated. Taking account of the arguments of the petitioner, in this case the Constitutional Court will consider whether the impugned resolution according to the procedure of its enactment is in compliance with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) and Paragraph 1 of Article 33, Item 2 of Article 94 and Paragraph 2 of Article 120 of the Constitution as well as whether the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, according to the procedure of their enactment, are in compliance with Paragraph 1 of Article 33, Paragraph 1 of Article 69 and Paragraph 2 of Article 120 of the Constitution.

4. The petitioner also maintains that, on 12 January 2000, on the basis of the impugned resolution the Seimas enacted the Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries. It needs to be noted that the draft of this law was submitted to the Seimas on the basis of the Government Resolution (No. 21) “On Submitting the Draft Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries to the Seimas of the Republic of Lithuania” of 10 January 2000. In the impugned government resolution of 29 November 1999 this draft law is not mentioned at all. The petitioner does not request the consideration of the compliance of the government resolution of 10 January 2000 with the Constitution and the laws. The petitioner has not presented any other reasoning on which its doubts are based regarding the compliance of the 12 January 2000 Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries with the Constitution. In this case the Constitutional Court will not consider the compliance of the 12 January 2000 Law Amending Articles 3 and 4 of the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries with the Constitution.

5. The petitioner requests an investigation into the compliance of the impugned resolution with Item 30 of Article 15 of the Law on Self-Government. On 12 October 2000, the Seimas set forth the Law on Self-Government in a new wording (Official Gazette Valstybės žinios, 2000, No. 91-2832). In this case the Constitutional Court will consider whether the impugned resolution is in compliance with Item 30 of Article 15 of the Law on Self-Government (wording of 17 November 1998).

The petitioner also requests an investigation into the compliance of the impugned resolution with Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries. On 26 April 2001, the Seimas adopted the Law Supplementing Articles 1, 3, 9 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (Official Gazette Valstybės žinios, 2001, No. 41-1420) by which Paragraph 1 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries was supplemented. In this case the Constitutional Court will consider the compliance of the impugned resolution with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999).

II

1. Article 11 of the Constitution provides that the administrative divisions of the territory of the State of Lithuania and their boundaries shall be determined by law. Under Paragraph 1 of Article 119 of the Constitution, administrative units provided by law on state territory shall be entitled to the right of self-government, which shall be implemented through municipal councils.

Article 120 of the Constitution provides:

The State shall support municipalities.

Municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws.”

These provisions of the Constitution and those of Paragraphs 1 and 2 of Article 123 of the Constitution as well as other constitutional provisions mean that in administrative units the centralised state administration is being coordinated with local self-government.

2. Paragraph 1 of Article 33 of the Constitution provides: “Citizens shall have the right to participate in the government of their State both directly and through their freely elected representatives, and shall have the equal opportunity to serve in a State office of the Republic of Lithuania.”

In the context of the case at issue the provision of Paragraph 1 of Article 33 of the Constitution that citizens shall have the right to participate in the government of their state both directly and through their freely elected representatives should be regarded not only as the right of citizens but also as a duty of institutions of authority, including the legislature, to find out the opinion of local residents when decisions are adopted concerning changes of the boundaries of administrative-territorial units. This is in line with the striving for an open, just, and harmonious civil society established in the Constitution.

It needs to be noted that in the European Charter of Local Self-Government, which was ratified by the Seimas on 25 May 1999, it is emphasised that the right of citizens to participate in the conduct of public affairs is one of democratic principles and that it is at local level that this right may be most directly exercised. Article 5 of this charter provides also that changes in local authority boundaries shall not be made without prior consultation of local communities concerned, possibly by means of a referendum where this is permitted by statute.

3. Under the Constitution, it is only the Seimas and by means of a law only that may determine the administrative divisions and their boundaries, thus, also to abolish the existing and establish new municipalities, change their boundaries and centres. In doing so, the Seimas is bound by the procedure of decision of these questions which is established in laws. The manner of determination of the administrative divisions and their boundaries is regulated in Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 and Paragraph 3 of Article 24 of the Law on Local Self-Government (wording of 17 November 1998).

Article 7 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) provides that the municipalities shall be established and abolished, as well as their boundaries and centres shall be set and changed by the Seimas on the proposal of the Government. Prior to addressing the Seimas, the Government shall take into consideration the opinion of the community of the residential area, the proposals of the municipal council, shall organise the opinion poll of local residents and shall adopt a decision regarding the proposal to the Seimas.

Article 13 of the said law provides:

The institution empowered by the Government shall consider and present conclusions to the Government on the proposals to establish or abolish municipalities, other administrative units of the territory and residential areas and to set or change their boundaries.

The procedure of the opinion poll of local residents shall be established by the Government of the Republic of Lithuania.

The institution empowered by the Government, when presenting a conclusion on the establishment of administrative units, setting or changing their boundaries, shall present the results of the opinion poll of the local residents, their requests and proposals of the municipal council, and shall assess the reasonableness and expediency of the opinion of the community of the residential area and the municipal council. The institution shall also present 1:100000 scale plans (2 copies) of such administrative units, containing the proposed changes, and if the boundaries of the territory, which are being changed, do not coincide with the boundaries of the land users—1:10000 scale plans of the boundaries (2 copies). The plans must be approved by the county governor and the Registrar of the Territorial Administrative Units of the Republic of Lithuania and Residential Areas.”

Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) provides that municipal councils shall have the right to submit proposals concerning the altering of the limits of the municipal territory.

4. The said provisions of the Constitution, the European Charter of Local Self-Government and of the laws pre-suppose the right of local communities and municipalities to take part, under procedure provided for in laws, in decision-making regarding the establishment and abolishment of municipalities, and the determination and changing of their boundaries and centres. In the course of decision-making regarding the establishment and abolishment of municipalities, and the determination and changing of the limits of their territories and centres the legislature must find out the opinions of the municipal councils and communities and consider them.

5. As mentioned before, Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) provides that the procedure of the opinion poll of local residents shall be established by the Government. By means of its Resolution (No. 1019) “On the Approval of the Procedure of the Opinion Poll of Local Residents” of 20 September 1999, the Government approved the Procedure of the Opinion Poll of Local Residents wherein it is established that the opinion poll shall be organised in the territories in which one provides to establish or abolish territorial administrative units of the Republic of Lithuania, to determine an change their boundaries, as well as it is established therein as to who the subjects of the poll may be, who the organiser and coordinator of the poll are, as well as it provides for those entitled to propose to conduct the poll and the procedures of the poll. Item 27 of this government resolution provides that “in the course of the adoption of decisions connected with the reform of territorial administrative units of the Republic of Lithuania the poll results must be assessed and taken into consideration. In cases when no account is taken of the poll results, this must be comprehensively reasoned.”

The fact must also be emphasised that the provision established in Article 7 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) that the Government, prior to addressing the Seimas, shall take into consideration the proposals of the municipal council means that municipal councils are entitled to present proposals on changing the boundaries of the municipalities and their centres. An analogous provision is formulated in Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) wherein it is established that that municipal councils submit proposals concerning the altering of the boundaries of the municipality.

Paragraph 3 of Article 24 of the Law on Local Self-Government (wording of 17 November 1998) provides that “in cases when higher state institutions consider matters related to interests of a municipality, the former must inform the municipality about this. The council shall submit proposals which must be considered by higher state institutions”, while Paragraph 4 thereof provides that “the Government and its institutions shall coordinate the decisions on issues concerning the planning of the State territory with municipalities and propose the changes in the boundaries of municipalities, taking into consideration the proposals of municipalities.” Thus, the initiative of the Government and its institutions on issues concerning territorial planning must always be coordinated with municipalities, i.e. municipal councils must be requested to submit proposals and the received proposals must be considered.

6. Item 2 of Article 94 of the Constitution stipulates that the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic. Thus, while adopting the impugned resolution, the Government had to accomplish all the requirements of the aforementioned laws. It is also bound by the resolutions which it adopted itself. Therefore, the Government, while adopting the impugned resolution, had to follow its Resolution (No. 1019) “On the Approval of the Procedure of the Opinion Poll of Local Residents” of 20 September 1999.

III

On the compliance of the Government Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999 with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998), and Item 2 of Article 94, Paragraph 1 of Article 33, Paragraph 2 of Article 120 of the Constitution

1. The petitioner has doubts whether the impugned resolution, according to the procedure of its enactment, is in compliance with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998), and Item 2 of Article 94, Paragraph 1 of Article 33, Paragraph 2 of Article 120 of the Constitution.

2. To decide whether the impugned resolution is in compliance with Articles 7 and 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998), and the Constitution, it is important to establish whether the requirements set forth in the laws and government resolution of 20 September 1999 were implemented, i.e., whether the opinion poll was conducted following the procedure established by the Government or not, whether its findings were assessed or not, and whether the Government and/or the institution empowered by it requested the municipal councils to submit proposals regarding the changing of municipal boundaries and whether it considered them or not.

The material provided by the representatives of the party concerned—the Government—indicates that the opinion poll, under the Government Resolution (No. 1019) “On the Approval of the Procedure of the Opinion Poll of Local Residents” of 20 September 1999, had not been conducted in the course of the adoption of the impugned resolution of 29 November 1999 by the Government.

The representatives of the party concerned—the Government—assert that the Government did not violate the established procedure by adopting the impugned resolution, as, upon the commission by the institution empowered by it, i.e. the Ministry of Public Administration Reforms and Municipal Affairs, the Market and Opinion Research Centre “Vilmorus” conducted the opinion poll of local residents on 2–7 March 1999. The Constitutional Court notes that this opinion poll had been conducted before the Government Resolution “On the Approval of the Procedure of the Opinion Poll of Local Residents” of 20 September 1999 went into effect. The impugned resolution, however, was passed on 29 November 1999, therefore, in the course of its adoption, one ought to have followed the Government Resolution (No. 1019) “On the Approval of the Procedure of the Opinion Poll of Local Residents” of 20 September 1999. It has already been held in this ruling of the Constitutional Court that the Government is bound by its resolutions and that the opinion poll, following the procedure established by the said government resolution, was not conducted. The statements made by the representative of the party concerned—the Government—asserting that the opinion poll conducted on 2–7 March 1999 was in conformity with the procedure established in government resolution of 20 September 1999 are untenable.

3. The petitioner requests an investigation into whether the impugned resolution, according to the procedure of its enactment, is in compliance with whole Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999).

Paragraph 1 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) prescribes that “the institution empowered by the Government shall consider and present conclusions to the Government on the proposals to establish or abolish municipalities, other administrative units of the territory and residential areas and to set or change their boundaries”.

Paragraph 2 of Article 13 of said Law stipulates that “the procedure of the opinion poll of local residents shall be established by the Government of the Republic of Lithuania”.

It should be noted that the impugned government resolution does not contain any provisions denying the norms contained in Paragraph 1 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), stipulating that the institution empowered by the Government shall consider and present conclusions to the Government on the proposals to establish or abolish municipalities, other administrative units of the territory and residential areas and to set or change their boundaries.

Neither does the impugned government resolution contain any provisions denying the norm of Paragraph 2 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), providing that the procedure of the opinion poll of local residents shall be established by the Government of the Republic of Lithuania. The Government established the said procedure of the opinion poll of local residents by another resolution, the one dated 20 September 1999, and not by the impugned resolution.

Taking account of the arguments set forth, it should be concluded that the impugned resolution, according to the procedure of its enactment, is in compliance with Paragraphs 1 and 2 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999).

Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) stipulates that “the institution empowered by the Government, when presenting a conclusion on the establishment of administrative units, setting or changing their boundaries, shall present the results of the opinion poll of the local residents, their requests and proposals of the municipal council, and shall assess the reasonableness and expediency of the opinion of the community of the residential area and the municipal council. The institution shall also present 1:100000 scale plans (2 copies) of such administrative units, containing the proposed changes, and if the boundaries of the territory, which are being changed, do not coincide with the boundaries of the land users—1:10000 scale plans of the boundaries (2 copies). The plans must be approved by the county governor and the Registrar of the Territorial Administrative Units of the Republic of Lithuania and Residential Areas”.

It has already been held in this ruling of the Constitutional Court that no opinion poll of residents, following the procedure established by the government resolution of 20 September 1999, had been conducted before the adoption of the impugned resolution. Thus, the requirement prescribed by Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), instructing that the institution empowered by the Government, while preparing its conclusion on the establishment of the territorial administrative units, the setting and changing of their boundaries, should present to the Government the findings of the opinion poll of local residents, was not carried out. The failure to meet this requirement alone constitutes sufficient grounds to recognise that the impugned resolution, according to the procedure of its enactment, is in conflict with Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999).

Having held that the impugned resolution, according to the procedure of its enactment, conflicts with Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), it should be concluded that it is also in conflict with Item 2 of Article 94, Paragraph 1 of Article 33, and Paragraph 2 of Article 120 of the Constitution.

4. Taking account of the arguments set forth above, the conclusion should be drawn that the Government Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999, according to the procedure of its enactment, conflicts with Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), as well as Paragraph 1 of Article 33, Item 2 of Article 94, and Paragraph 2 of Article 120 of the Constitution.

5. As mentioned before, Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998) establishes that municipal councils shall have the right to submit proposals concerning the altering of the limits of the municipal territory. This provision provides for the right of municipal councils to submit proposals concerning the altering of the limits of the municipal territory, which also means that the Government must inform the municipalities of any intended modifications of municipal boundaries and request them to submit their respective proposals. The representatives of the party concerned—the Government—presented material indicating that the institution empowered by the Government, i.e. the Ministry of Public Administration Reforms and Municipal Affairs, called for proposals of the municipal councils and discussed the reform of administrative units, i.e. the establishment of new municipalities, the establishment and changing of their boundaries, with the municipalities. Thus, the Government did not violate the requirements specified in Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998).

6. Taking account of the arguments set forth above, it should be concluded that the Government Resolution (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999, according to the procedure of its enactment, is in compliance with Item 30 of Article 15 of the Law on Local Self-Government (wording of 17 November 1998).

IV

On the compliance of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries with Paragraph 1 of Article 69, Paragraph 1 of Article 33, and Paragraph 2 of Article 120 of the Constitution

1. The petitioner has doubts whether the impugned laws, according to the procedure of their enactment, are in compliance with Paragraph 1 of Article 69, Paragraph 1 of Article 33, and Paragraph 2 of Article 120 of the Constitution.

2. It needs to be noted that the provision contained in Paragraph 1 of Article 69 of the Constitution, reading that laws shall be enacted by the Seimas following the procedure established by law, and the provision of Article 76 that the structure and procedures of activities of the Seimas shall be determined by the Statute of the Seimas, mean that the legislation procedure can be regulated by the Statute of the Seimas as well as other laws. The procedure of enactment of laws establishing or abolishing municipalities, changing their boundaries and centres, is prescribed by the Constitution, the Statute of the Seimas, the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries, and the Law on Local Self-Government. These matters are also regulated by the European Charter on Local Self-Government.

3. As mentioned before, Paragraph 3 of Article 24 of the Law on Local Self-Government (wording of 17 November 1998) establishes that “in cases when higher state institutions consider matters related to interests of a municipality, the former must inform the municipality about this. The council shall submit proposals which must be considered by higher state institutions.” Article 5 of the European Charter on Local Self-Government also stipulates that changes in local authority boundaries shall not be made without prior consultation of local communities concerned, possibly by means of a referendum where this is permitted by statute. Thus, pursuant to the Law on Local Self-Government and the European Charter on Local Self-Government, the Seimas has to examine and deliberate the proposals of the municipal councils and the opinion of the local communities before considering the issues related to the establishment or abolishment of municipalities, the setting and changing of their boundaries and centres.

It has already been held in this ruling of the Constitutional Court that the impugned resolution, according to the procedure of its enactment, conflicts with Article 7 and Paragraph 3 of Article 13 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), and Item 2 of Article 94, Paragraph 1 of Article 33, Paragraph 2 of Article 120 of the Constitution. The material furnished by the representatives of the party concerned—the Seimas—indicates that the Seimas did not examine or deliberate the proposals of the municipal councils or the opinion of the local communities before passing the impugned laws, whose drafts had been submitted on the grounds of the impugned resolution. Therefore, it may be concluded that the Seimas failed to observe the requirements set forth in Paragraph 3 of Article 24 of the Law on Local Self-Government (wording of 17 November 1998) and Article 5 of the European Charter on Local Self-Government.

4. Taking account of the above-mentioned arguments, it should be concluded that, according to the procedure of their enactment, the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries conflict with Paragraph 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

1. To recognise that the Resolution of the Government of the Republic of Lithuania (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999, according to the procedure of its enactment, conflicts with Article 7 and Paragraph 3 of Article 13 of the Republic of Lithuania’s Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999), Item 2 of Article 94, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania.

2. To recognise that the Resolution of the Government of the Republic of Lithuania (No. 1307) “On the Draft Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Draft Law on the Implementation of the Law Amending Articles 4 and 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries” of 29 November 1999, according to the procedure of its enactment, is in compliance with Paragraphs 1 and 2 of Article 13 of the Republic of Lithuania’s Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of the Republic of Lithuania’s Law on Local Self-Government (wording of 17 November 1998).

3. To recognise that, according to the procedure of their enactment, the Republic of Lithuania’s Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries and the Republic of Lithuania’s Law on the Implementation of the Law Supplementing Articles 4 and 14 and Amending Article 5 of the Law on the Territorial Administrative Units of the Republic of Lithuania and Their Boundaries conflict with Paragraph 1 of Article 69, Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

Egidijus Jarašiūnas      Egidijus Kūris      Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Vytautas Sinkevičius       Stasys Stačiokas      Teodora Staugaitienė