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On the competence of institutions of local self-government

Case No. 49/2000

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 3 (WORDING OF 12 OCTOBER 2000), PARAGRAPH 4 OF ARTICLE 3 (WORDING OF 12 OCTOBER 2000), ITEM 2 OF PARAGRAPH 1 OF ARTICLE 5 (WORDING OF 12 OCTOBER 2000), PARAGRAPH 1 OF ARTICLE 18 (WORDING OF 12 OCTOBER 2000), ITEMS 2, 3, 4, 8, AND 15 OF PARAGRAPH 1 OF ARTICLE 19 (WORDING OF 12 OCTOBER 2000), ITEMS 1, 5, 7, 9, 12, 15, 16, 17, AND 18 OF PARAGRAPH 1 OF ARTICLE 21 (WORDING OF 12 OCTOBER 2000), ITEM 6 OF THE SAME PARAGRAPH (WORDINGS OF 12 OCTOBER 2000 AND 25 SEPTEMBER 2001), AND ITEM 14 OF THE SAME PARAGRAPH (WORDINGS OF 12 OCTOBER 2000 AND 8 NOVEMBER 2001) OF THE REPUBLIC OF LITHUANIA’S LAW ON LOCAL SELF-GOVERNMENT, AS WELL AS THE REPUBLIC OF LITHUANIA’S CONSTITUTIONAL LAW ON THE PROCEDURE OF THE APPLICATION OF THE LAW ON THE ALTERATION OF ARTICLE 119 OF THE CONSTITUTION, AND THE REPUBLIC OF LITHUANIA’S LAW ON THE ENTERING OF THE CONSTITUTIONAL LAW ON THE PROCEDURE OF THE APPLICATION OF THE LAW ON THE ALTERATION OF ARTICLE 119 OF THE CONSTITUTION ON THE LIST OF CONSTITUTIONAL LAWS, WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

24 December 2002
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Seimas member Petras Papovas, acting as the representative of the group of members of the Seimas of the Republic of Lithuania, the petitioner

Ona Buišienė, chief consultant to the Legal Department of the Office of the Seimas of the Republic of Lithuania, acting as the representative of the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 26 November 2002, in its public hearing, considered case No. 49/2000 subsequent to the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Republic of Lithuania’s Law on the Amendment of the Law on Local Self-Government were not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution of the Republic of Lithuania, whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the same law was not in conflict with Paragraph 2 of Article 5, Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania, whether Item 2 of Paragraph 1 of Article 5 of the same law was not in conflict with Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania, whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the same law was not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania, whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the same law were not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania, as well as whether the provisions of Item 1 of Paragraph 1 of Article 21 of the same law which regulate the activity of the mayor in the capacity of the head of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article were not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. On 7 July 1994, the Seimas adopted the Republic of Lithuania’s Law on Local Self-Government (Official Gazette Valstybės žinios, 1994, No. 55-1049).

2. The articles (paragraphs and items thereof) of the Law on Local Self-Government (wording of 7 July 1994) were amended, supplemented and/or recognised as no longer valid by: the Republic of Lithuania’s Law “On the Amendment of Article 7 of the Republic of Lithuania’s Law on Local Self-Government” which was adopted on 4 April 1995 by the Seimas (Official Gazette Valstybės žinios, 1995, No. 30-683), the 5 July 1995 Republic of Lithuania’s Law “On the Supplementation of the Republic of Lithuania’s Law on Local Self-Government” (Official Gazette Valstybės žinios, 1995, No. 59-1486), the 14 September 1995 Republic of Lithuania’s Law “On the Supplement of Article 19 of the Republic of Lithuania’s Law on Local Self-Government” (Official Gazette Valstybės žinios, 1995, No. 79-1820), the 14 March 1996 Republic of Lithuania’s Law on the Amendment of Article 29 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1996, No. 33-804), the 28 March 1996 Republic of Lithuania’s Law on the Amendment of Article 17 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1996, No. 35-869), the 7 May 1996 Republic of Lithuania’s Law on the Amendment of Articles 15, 18 and 23 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1996, No. 50-1196), the 23 January 1997 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 12 and 26 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1997, No. 11-206), the 25 February 1997 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 2, 5, 6, 7, 8, 9, 10, 15, 17, 18, 19, 26, and 28 of the Law on Local Self-Government and Recognition of Article 30 Thereof as No Longer Valid (Official Gazette Valstybės žinios, 1997, No. 20-446), the 3 June 1997 Republic of Lithuania’s Law on the Supplement of Article 4 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1997, No. 53-1228), the 24 June 1997 Republic of Lithuania’s Law on the Amendment of Article 16 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1997, No. 62-1465), the 6 November 1997 Republic of Lithuania’s Law on the Amendment of Articles 5 and 18 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1997, No. 106-2669), the 14 May 1998 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 7, 15, and 28 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1998, No. 51-1393), the 17 November 1998 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 15 and 18 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1998, No. 105-2900), and the 24 November 1998 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 13 and 20 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 1998, No. 108-2955).

3. On 12 October 2000, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2000, No. 91-2832) by Article 1 whereof it amended the Law on Local Self-Government (wording of 7 July 1994 with subsequent amendments) and set it forth in a new wording.

4. The articles (paragraphs and items thereof) of the Law on Local Self-Government (wording of 12 October 2000) were amended and/or supplemented by: the Republic of Lithuania’s Law on the Supplement of Articles 8, 20 and 31 of the Law on Local Self-Government which was adopted on 5 July 2001 by the Seimas (Official Gazette Valstybės žinios, 2001, No. 64-2323), the 2 August 2001 Republic of Lithuania’s Law on the Amendment of Article 41 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2001, No. 71-2515), the 25 September 2001 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and 37 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2001, No. 85-2969), the 8 November 2001 Republic of Lithuania’s Law on the Amendment of Articles 7 and 21 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2001, No. 99-3519), the 10 December 2001 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 8, 17, 19, and 21 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2001, No. 110-3984), the 28 March 2002 Republic of Lithuania’s Law on the Amendment of Article 1 of the Law on the Amendment and Supplement of Articles 8, 17, 19, and 21 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2002, No. 33-1256), the 9 April 2002 Republic of Lithuania’s Law on the Amendment of Articles 6, 17, 19, and 26 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2002, No. 43-1604), the 20 June 2002 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 3, 14, 18, 20, 25, 36, and 41 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2002, No. 68-2765), the 24 September 2002 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 7 and 8 of the Law on Local Self-Government (Official Gazette Valstybės žinios, 2002, No. 96-4171), and the 15 October 2002 Republic of Lithuania’s Law on the Amendment and Supplement of Articles 17 and 21 of the Law on Local Self-Government as well as the Supplement of Chapter Thirteen Thereto (Official Gazette Valstybės žinios, 2002, No. 103-4605).

5. A group of Seimas members, the petitioner, requests an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Law on the Amendment of the Law on Local Self-Government were not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution, whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the same law was not in conflict with Paragraph 2 of Article 5, Paragraphs 1 and 4 of Article 119 of the Constitution, whether Item 2 of Paragraph 1 of Article 5 of the same law was not in conflict with Paragraph 2 of Article 120 of the Constitution, whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the same law was not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the same law were not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, as well as whether the provisions of Item 1 of Paragraph 1 of Article 21 of the same law which regulate the activity of the mayor in the capacity of the head of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article were not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

II

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

1. The petitioner maintains that Paragraph 3 of Article 3 of the Law on the Amendment of the Law on Local Self-Government establishes the notion “municipal institutions”. According to the petitioner, under Article 3 of the said law, municipal institutions are the municipal council and the municipal board.

Paragraph 3 of Article 119 of the Constitution provides that the procedure for the organisation and activities of self-government institutions shall be established by law. Thus, according to the petitioner, Paragraph 3 of Article 119 of the Constitution employs the notion “self-government institutions” but not that of “municipal institutions”. The petitioner also points out that it is established in Paragraph 1 of Article 119 of the Constitution that administrative units provided by law on state territory shall be entitled to the right of self-government and that this right shall be implemented through respective municipal councils, while Paragraph 4 of Article 119 of the Constitution provides that “municipal councils shall form executive bodies which are accountable to them”. The petitioner maintains that neither the Constitution nor the Law on the Amendment of the Law on Local Self-Government provides for other municipal institutions.

In the opinion of the petitioner, the aforementioned law ought to employ the notion employed by the Constitution, thus, the municipal council and the municipal board must be referred to as self-government institutions but not municipal institutions.

Therefore, the petitioner has doubts whether the notion “municipal institutions” established in Paragraph 3 of the Law on the Amendment of the Law on Local Self-Government is not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution.

2. The petitioner maintains that it is established in Paragraph 1 of Article 5 of the 12 October 2000 Law on the Amendment of the Law on Local Self-Government that, according to the freedom of adoption of decisions, the functions of the municipality are grouped into independent (Item 1) and assigned (independent-limited) (Item 2) ones.

In the opinion of the petitioner, it might be possible to regard the state functions of municipalities (those transferred to municipalities) which are pointed out in Item 3 (but not in Item 2) of Paragraph 1 of Article 5 of the Law on the Amendment of the Law on Local Self-Government as independent-limited municipal functions. Under Paragraph 7 of Article 36 of this law, the funds designated for the discharging of the state functions (those transferred to municipalities) shall be allocated from the state budget or from state monetary funds and shall be transferred to municipalities as a special grant-in-aid, meanwhile, the independent functions of municipalities shall be financed from independent municipal budgets.

Paragraph 2 of Article 120 of the Constitution provides: “Municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws.”

In the opinion of the petitioner, municipalities discharge freely and independently, while observing the Constitution, all their functions defined in the Constitution and laws, thus, functions of municipalities cannot be independent-limited.

Therefore, the petitioner has doubts whether Item 2 of Paragraph 1 of Article 5 of the Law on the Amendment of the Law on Local Self-Government is not in conflict with Paragraph 2 of Article 120 of the Constitution.

3. The petitioner maintains that Paragraph 1 of Article 18 of the Law on the Amendment of the Law on Local Self-Government provides that for the term of its powers, the municipal council shall form a board from among the members of the municipal council and establish the number of members of the board. Under Paragraph 3 of Article 3 of the same law, the municipal board shall be an executive institution.

According to the petitioner, under Paragraph 1 of Article 3 of the aforesaid law, the right of self-government guaranteed by the Constitution is implemented through the municipal board which, according to Paragraph 3 of the same article, has the rights and duties of local power.

Paragraph 4 of Article 119 of the Constitution provides that “for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it”.

In the opinion of the petitioner, it is the municipal board that is the executive body of the municipality (a self-government executive institution). The municipal board is a different institution from the municipal council composed of members of the municipal council, who are elected by the residents. According to the petitioner, the municipal board may not be formed from among members of the municipal council, since these members of the municipal council would be accountable and subordinate to themselves, while this would be in conflict with the principles of the separation of powers (institutions), subordination and accountability, which are established in the Constitution.

Therefore, the petitioner has doubts whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the Law on the Amendment of the Law on Local Self-Government is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

4. The petitioner maintains that Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the Law on the Amendment of the Law on Local Self-Government establish not the executive powers to the municipal board (i.e. an executive institution) but the powers of representative local power for the implementation of the right of self-government and for the adoption of decisions in the interests of the community. For instance, the petitioner maintains that, under Item 8 of Paragraph 1 of Article 19 of the aforesaid law, the municipal board “shall adopt decisions, which are obligatory for the residents, on sanitation, public health and environmental protection issues and shall publish them in the press”. Such powers, according to the petitioner, may only be established for the municipal council.

Paragraph 1 of Article 119 of the Constitution provides that the right of self-government shall be implemented through corresponding municipal councils. Paragraph 4 of Article 119 of the Constitution provides that “for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.”

Thus, according to the petitioner, the powers of the municipal board are limited by the Constitution; the municipal board may only directly implement the decisions of the municipal council, but it is not permitted to establish powers, by law, to the municipal board to adopt decisions which are obligatory for the community or to adopt decisions in the interests of the community. In the opinion of the petitioner, upon the establishment of the said powers of the municipal board, the powers of the municipal council provided for in Paragraph 1 of Article 119 of the Constitution become limited, while the powers of the municipal board provided for in Paragraph 4 of Article 119 of the Constitution are broadened, Thus, the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution is violated.

Thus, the petitioner has doubts as to whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the Law on the Amendment of the Law on Local Self-Government are not in conflict with of Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

5. The petitioner maintains that Paragraph 3 of Article 3 of the Law on the Amendment of the Law on Local Self-Government provides that “the mayor of the municipality shall be an executive institution”, also that Paragraph 3 of Article 3 and Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the same law establish the powers to the mayor of the municipality to discharge the functions of the head of three self-government institutions. First, the mayor of the municipality heads the municipal council, a representative self-government institution. Second, he heads the municipal board, an executive self-government institution. Third, the mayor himself is an executive institution. According to the petitioner, Item 1 of Paragraph 1 of Article 21 of the said law contains the following provisions regulating the activity of the mayor of the municipality in the capacity of the head of the municipal council: he determines and draws up agendas for the municipal council and submits draft decisions, convenes sittings of the municipal council and chairs them, coordinates the activity of committees and commissions of the municipal council, signs decisions of the municipal council and the minutes of the sittings that he has chaired. These are the functions of the mayor of the municipality in the capacity of the head of the municipal council. In addition, the petitioner points out that this as well as the other indicated items of Paragraph 1 of Article 21 of the Law on the Amendment of the Law on Local Self-Government establishes the functions of the mayor of the municipality in the capacity of the head of board of the municipality: he determines and draws up agendas for the municipal board sittings and submits draft decisions, signs decisions of the municipal board and the minutes of the sittings that he has chaired (Item 1), administers municipal grants-in-aid or empowers the administrator to do so (Item 6), heads structural and structural-territorial units of the municipality through the administrator of the municipality (Item 7) etc.

The petitioner draws one’s attention to the fact that Paragraph 9 of Article 20 of the Law on the Amendment of the Law on Local Self-Government provides that “the mayor or his deputy may not work in any other institutions, establishments, enterprises and organisations as well as receive any remuneration other than the remuneration for scientific, educational or creative activities”.

Meanwhile, the petitioner assumes that under Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on the Amendment of the Law on Local Self-Government, the mayor of the municipality discharges the functions of the head of three self-government institutions. According to the petitioner, the fact that one person, the mayor of the municipality, heads also an executive institution (i.e. the municipal board) broadens his powers as the head of local power (i.e. the municipal council).

The petitioner is of the opinion that the functions of the municipal council (i.e. the representative institution) and the municipal board (i.e. an executive institution) are separated in Paragraphs 1 and 4 of Article 119 of the Constitution; the principle of the separation of powers is established in this article of the Constitution. Paragraph 2 of Article 5 of the Constitution provides that the scope of power shall be limited by the Constitution.

Therefore, the petitioner has doubts as to whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the Law on the Amendment of the Law on Local Self-Government, the provisions of Item 1 of Paragraph 1 of Article 21 of the same law, which regulate the activity of the mayor in the capacity of the head of the municipal board, as well as Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on the Amendment of the Law on Local Self-Government are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

III

In the course of the preparation of the case for the judicial consideration, written explanations were received from O. Buišienė, the representative of the party concerned.

1. The representative of the party concerned maintains that, under Article 11 of the Constitution, the administrative units of the territory of the State of Lithuania and their boundaries shall be established by law. The notion of an administrative unit of the territory of the state as well as the organisation of administration in these parts of the territory is defined in the Republic of Lithuania’s Law on the Administrative Units of the Republic of Lithuania and their Boundaries. Paragraph 1 of Article 2 of the said law provides that the municipality is an administrative territorial unit of the Republic of Lithuania, which is governed by self-government institutions, elected by the local community pursuant to the Republic of Lithuania’s Law on Local Self-Government.

The right of self-government of the municipality as an administrative territorial unit is guaranteed by Article 119 of the Constitution. O. Buišienė asserts that Paragraph 1 of the aforementioned article establishes the procedure for the formation of the right of self-government, i.e. it is implemented through corresponding municipal councils, Paragraph 2 thereof establishes the procedure of the composition of the councils as well as their term of powers, Paragraph 3 thereof consolidates the organisational form of the implementation of right of self-government of the administrative territorial unit (municipality) and employs the general notion “institutions”, and Paragraph 4 thereof consolidates the formation of executive bodies which are accountable to the councils. The representative of the party concerned notes that the legislature, while implementing the right to adopt laws, which is granted to him by the Constitution, adopted the Law on Local Self-Government, which regulates the implementation of the right of self-government, defines the system of self-government institutions established in the Constitution, and establishes the procedure for the organisation and activities of municipal institutions. O. Buišienė is of the opinion that the legislature was consistent when he, while defining the notions of the representative institution (council) and the executive institutions (board and mayor), employed the same notion “institutions”.

The Constitution is an integral and directly applicable act. The representative of the party concerned assumes that it is impossible to assert on the grounds of Articles 10, 11, 119, 120, 121, 122, and 124 of the Constitution that the municipality is an administrative territorial unit the administration of which is organised through self-government institutions, which are treated as certain local power bodies, and which implement the right of self-government granted to municipalities, administrative units of state territory provided for by law. Since this right is implemented through corresponding municipal councils, then the municipal council is a self-government institution. The municipal board and the mayor, which are formed by the municipal council and are accountable to it are executive institutions, directly implementing decisions of the council. Paragraph 4 of Paragraph 3 of the Law on Local Self-Government defines the control institution of the municipality, which is the municipal controller; his functions are related with the control over the use of the municipal budget and the municipal inner audit, he supervises the activity of municipal institutions but not the implementation of the right of self-government. Therefore, the control institution may not be named “self-government control institution”. In the opinion of O. Buišienė, the notions established in Paragraphs 3 and 4 of Article 3 of the Law on Local Self-Government are not in conflict with the Constitution.

2. According to the representative of the party concerned, local self-government is entrenched in the Constitution as the system of public administration functioning on the grounds of self-action, which is not directly subordinate to the state authority institutions. It is possible to distinguish the following constitutional principles of local self-government: representative democracy, the accountability of executive institutions to the representation, freedom and independence of the activities of municipalities within the limits defined by law, and coordination of the interests of the state and the municipality.

Paragraph 2 of Article 120 of the Constitution provides that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws. Thus, the representative of the party concerned notes that the freedom and independence of municipalities are bound by their competence defined in the Constitution and laws.

The competence and functions of municipalities are established in Articles 5-9 of the Law on Local Self-Government. The legislature, while defining the functions of municipalities, differentiated them according to the freedom, specific character and occurrence of grounds to adopt decisions and grouped them into independent, assigned (independent-limited), state (transferred to the municipalities) and contractual. O. Buišienė draws one’s attention to the fact that, under Paragraph 2 of Article 4 of the European Charter of Local Self-Government, local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority. The principle of the freedom and independence of municipal activities within the limits defined by law means precisely that the municipal activities may be limited only by the Constitution or the law but not any bodies of central or regional power (save the cases provided for in the law). Therefore, in the opinion of the representative of the party concerned, there are no grounds to maintain that Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government, which establishes the assigned (independent-limited) municipal functions is in conflict with Paragraph 2 of Article 120 of the Constitution.

3. The representative of the party concerned maintains that Paragraph 1 of Article 5 of the Constitution, which provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute state power, establishes the principle of the division and separation of powers. O. Buišienė asserts that the principle of the separation of powers means that the legislative, executive and judicial powers must be separated, sufficiently independent, but also there must be a balance among them; the competence is established for every state institution which corresponds to its purpose. Thus, the principle of the separation of powers is disclosed by the constitutional provisions that determine the competence of branches of power and their interrelations.

Meanwhile, according to the representative of the party concerned, under Article 119 of the Constitution, local self-government is implemented through elected and formed institutions, besides, in municipalities the forms of direct and representative democracy are coordinated. The system of municipal institutions is independent, municipal institutions are not state authority bodies, and the principle of the division and separation of powers is not applied to municipalities.

Paragraph 4 of Article 119 of the Constitution provides that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it. The procedure for organisation and formation of these bodies is established by the Law on Local Self-Government. In the opinion of the representative of the party concerned, the fact that under the law the municipal board is formed and the mayor is elected from among the members of a representative institution (the municipal council) is in line with the Constitution.

4. According to O. Buišienė, under the Constitution, the functions of municipalities ought to be implemented through municipal councils, while the decisions adopted by the councils ought to be implemented by the executive bodies (the board and the mayor).

The representative of the party concerned assumes that the powers granted to the board by Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the Law on Local Self-Government to adopt decisions on drafting various programmes, on the distribution of funds to municipal establishments, on determining the size of the rent for residential premises, on the establishment of the number of offices of public servants of political (personal) confidence, as well as the powers to adopt compulsory decisions on sanitation, public health, and environmental issues, are of executive nature. Therefore, in the opinion of O. Buišienė, Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the Law on Local Self-Government are not in conflict with the Constitution.

5. The representative of the party concerned points out that the powers of the mayor as an executive institution, which are defined in Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government, are related with the organisation of the activities of the representative and executive institutions. The mayor of the municipality takes part in the activities of both the representative and executive institution. O. Buišienė asserts that the provision of Paragraph 4 of Article 119 of the Constitution that the municipal council shall establish executive bodies accountable to it does not prohibit the mayor of the municipality, as a member of the municipal representative body (council), from participating in the activities of the municipal executive body. As the division and separation of local power is not entrenched in the Constitution, the participation of the mayor in the activities of both the municipal council and the municipal board is not in conflict with the principle of the division and separation of powers, which is entrenched in the Constitution. Therefore, the representative of the party concerned assumes that there are no grounds to assert that the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government regulating the activity of the mayor in the capacity of the head of the municipal board, also, Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of the same article, as well as the provision “the mayor shall be an executive institution” of Paragraph 3 of Article 3 of the Law on Local Self-Government are in conflict with the Constitution.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from J. Bernatonis, Minister of the Interior of the Republic of Lithuania, A. Zuokas, Mayor of the Vilnius City Municipality, S. Šiupšinskas, Director of the Lithuanian Association of Municipalities, and A. Gazarianas, Director of the Centre for Research of Self-Government Issues.

V

1. At the Constitutional Court’s hearing, P. Papovas, the representative of the petitioner, virtually reiterated the arguments set forth in his written explanations.

P. Papovas also explained that the petitioner challenges not the compliance of the articles (paragraphs and items thereof), pointed out by the petitioner, of the Law on the Amendment of the Law on Local Self-Government which was adopted on 12 October 2000, but that of respective articles (paragraphs and items thereof) of the Law on Local Self-Government set forth in its new wording of 12 October 2000 by means of Article 1 of the Law on the Amendment of the Law on Local Self-Government.

2. At the Constitutional Court’s hearing, O. Buišienė, the representative of the party concerned, virtually reiterated the arguments set forth in her written explanations.

3. At the Constitutional Court’s hearing, B. Kleponis, the specialist, an advisor to the Seimas Committee on State Administration and Local Authorities, delivered his report.

The Constitutional Court

holds that:

I

1. The petitioner requests an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Law on the Amendment of the Law on Local Self-Government are not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution, whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the same law is not in conflict with Paragraph 2 of Article 5, Paragraphs 1 and 4 of Article 119 of the Constitution, whether Item 2 of Paragraph 1 of Article 5 of the same law is not in conflict with Paragraph 2 of Article 120 of the Constitution, whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the same law is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the same law are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, as well as whether the provisions of Item 1 of Paragraph 1 of Article 21 of the same law which regulate the activity of the mayor in the capacity of the head of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

2. There are three articles in the 12 October 2000 Law on the Amendment of the Law on Local Self-Government. By Article 1 of the said law, the until then in effect Law on Local Self-Government was amended and set forth in a new wording. It is established in Article 2 of the Law on the Amendment of the Law on Local Self-Government that, upon entry into force of this law, the Republic of Lithuania’s Law on the Status of a Member of the Municipal Council shall become no longer valid. Article 3 of the Law on the Amendment of the Law on Local Self-Government regulates the implementation of the said law.

Thus, the entire Law on Local Self-Government (all articles, paragraphs and items thereof) of the new wording (12 October 2000) is set forth in Article 1 of the Law on the Amendment of the Law on Local Self-Government.

Thus, Paragraphs 3 and 4 of Article 3, Item 2 of Paragraph 1 of Article 5, Paragraph 1 of Article 18, Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19, and Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 which are pointed out by the petitioner are not articles (paragraphs and items thereof) of the Law on the Amendment of the Law on Local Self-Government adopted on 12 October 2000, but corresponding articles (paragraphs and items thereof) of the Law on Local Self-Government which was set forth in a new wording (12 October 2000) in Article 1 of the Law on the Amendment of the Law on Local Self-Government.

Therefore, the petition of the petitioner requesting an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Law on the Amendment of the Law on Local Self-Government are not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution, whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the same law is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, whether Item 2 of Paragraph 1 of Article 5 of the same law is not in conflict with Paragraph 2 of Article 120 of the Constitution, whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the same law is not in conflict with Paragraphs 1 and 4 of Article 119 and Paragraph 2 of Article 5 of the Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the same law are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, as well as whether the provisions of Item 1 of Paragraph 1 of Article 21 of the same law which regulate the activity of the mayor in the capacity of the head of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is a petition requesting an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution, whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the same law is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, whether Item 2 of Paragraph 1 of Article 5 of the same law is not in conflict with Paragraph 2 of Article 120 of the Constitution, whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the same law is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, whether Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the same law are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, as well as whether the provisions of Item 1 of Paragraph 1 of Article 21 of the same law which regulate the activity of the mayor in the capacity of the head of the board of municipality, and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

3. The petitioner requests an investigation into whether the notions “municipal institutions and municipal control institutions” established in Paragraphs 3 and 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution.

3.1. Article 3 of the Law on Local Self-Government (wording of 12 October 2000) does not contain the notion “municipal institutions and municipal control institutions”. Paragraph 3 of Article 3 of the said law defines the notion “municipal institutions”, while Paragraph 4 of the same article defines the notion “the municipal control institution”.

Thus, the petitioner requests an investigation into whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) and the notion “the municipal control institution” defined in Paragraph 4 of the same article are not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution.

3.2. The petitioner impugns the compliance of the notions “municipal institutions” and “the municipal control institution” which are respectively defined in Paragraphs 3 and 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraphs 1, 3 and 4 of Article 119 of the Constitution from the aspect that the said notions employ the word “municipal” but not “self-government”. In the opinion of the petitioner, the same notion ought to be employed in Paragraphs 3 and 4 of Article 3 of the said law as in Paragraph 3 of Article 119 of the Constitution, i.e. “self-government institutions”.

3.3. It is impossible to construe the words employed in a notion while dissociating it from the definition of the notion: a notion composed of certain words and its definition are an indivisible whole. While investigating the latter, one has to keep in mind the systematic links between the words, from which the defined notion is composed, and the meanings of the formulations of the definition of the said notion. It is impossible to investigate the notion and/or its definition by neglecting a certain word employed in the notion or any formulation of the definition of the said notion.

Thus, one cannot investigate a notion defined in a legal act (part thereof) by neglecting a certain word employed in the notion or a formulation employed in the definition of the said notion, as thereby the unity of corresponding legal regulation would be ignored. Thus, it is possible to investigate the compliance of a notion defined in a legal act with the Constitution only investigating alongside the compliance of its definition with the Constitution, i.e. by investigating whether the whole, i.e. indivisible legal regulation, of the provisions in which the definition of the said notion is formulated, is not in conflict with the Constitution.

3.4. Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines the notion “municipal institutions” as follows: “Municipal institutions shall be a representative institution—municipal council, and executive institutions—the municipal board (hereinafter referred to as the Board) and the mayor of the municipality (hereinafter referred to as the Mayor), which shall have the rights and duties of local power and public administration. Municipal institutions shall be responsible for the implementation of the rights of self-government and their functions in the interest of the community.”

Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines the notion “municipal institutions”: (1) while listing municipal institutions and grouping them: the municipal council is a representative institution, meanwhile, the municipal board and the mayor of the municipality are executive institutions; (2) while marking distinctive features of municipal institutions, i.e. the features which make these institutions different from other institutions: the rights and duties of local power and public administration, responsibility for the implementation of the right of self-government and their functions in the interests of the community. Except for the notion “municipal institutions” and its definition, Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) does not establish any other legal regulation; the legal regulation established in the said paragraph is indivisible; it is possible to investigate the compliance of the notion “municipal institutions” with the Constitution only alongside investigating the compliance of all the rest of the provisions of the said paragraph with the Constitution.

3.5. Paragraph 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines the notion “the municipal control institution” as follows: “The municipal control institution shall be the municipal controller, who controls the use of the municipal budget and discharges the functions of municipal inner audit.”

Paragraph 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines the notion “the municipal control institution”: (1) while naming the municipal control institution: the municipal controller; (2) while marking distinctive features of the municipal control institution, i.e. the features which makes this institution different from other institutions: the control over the use of the municipal budget, and discharging the functions of the municipal inner audit. Except for the notion “the municipal control institution” and its definition, Paragraph 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) does not establish any other legal regulation; the legal regulation established in the said paragraph is indivisible; it is possible to investigate the compliance of the notion “the municipal control institution” with the Constitution only alongside investigating the compliance of all the rest of the provisions of the said paragraph with the Constitution.

3.6. Subsequent to the petition of the petitioner requesting an investigation into whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) and the notion “the municipal control institution” defined in Paragraph 4 of the same article are not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, the Constitutional Court will investigate as to whether Paragraphs 3 and 4 of Article 3 of the aforementioned law are not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

4. The petitioner requests an investigation into whether the provision “the mayor of the municipality shall be an executive institution” of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

4.1. The petitioner impugns the compliance of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution to the extent that Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000), according to the petitioner, establishes to the mayor of the municipality the legal status of not only the head of the municipal board but also that of a municipal executive institution.

4.2. Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) does not contain the formulation “the mayor of the municipality shall be an executive institution”, i.e. the provision impugned by the petitioner that the mayor of the municipality shall be an executive institution is not consolidated verbatim in the manner formulated by the petitioner.

On the other hand, the notion “municipal institutions” of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is defined by consolidating, inter alia, that the mayor of the municipality, as well as the municipal board, is one of executive municipal institutions. Thus, the petitioner requests an investigation into whether the provision of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor of the municipality is an executive municipal institution is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

4.3. It has been mentioned that subsequent to the petition of the petitioner requesting an investigation into whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) and the notion “the municipal control institution” defined in Paragraph 4 of the same article are not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, the Constitutional Court will investigate whether Paragraphs 3 and 4 of Article 3 of the aforementioned law are not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

The petition of the petitioner requesting an investigation into whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and his petition requesting an investigation into whether the provision of Paragraph 3 of Article 3 of the same law that the mayor of the municipality is an executive municipal institution is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution are interrelated and partly repeat each other: the definition of the notion “municipal institutions” also includes the provision that the mayor of the municipality is an executive municipal institution. Thus, both aforesaid requests concern the same matter, which is the compliance of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) with the Constitution.

On the other hand, the petitioner has doubts whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and whether the provision of the same paragraph that the mayor of the municipality is an executive municipal institution is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

4.4. Subsequent to the petitions of the petitioner requesting an investigation into whether the notion “municipal institutions” defined in Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and whether the provision of the same paragraph that the mayor of the municipality is an executive municipal institution is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the Constitutional Court will investigate as to whether Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

5. The petitioner requests an investigation into whether the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) which regulate the activity of the mayor in the capacity of the head of the board of municipality and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

5.1. The doubt of the petitioner as to whether the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) which regulate the activity of the mayor in the capacity of the head of the board of municipality and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is based on the fact that, according to the petitioner, Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the same law provide for the powers for the mayor of the municipality to head both the municipal council and the municipal board; according to the petitioner, thereby the powers of the mayor as the head of the municipal council are broadened. The petition requesting an investigation into whether the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) which regulate the activity of the mayor in the capacity of the head of the board of municipality and Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is inseparable from the afore-discussed petition requesting an investigation into whether the provision of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor of the municipality is an executive municipal institution is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

5.2. Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) provides that the mayor “shall determine and draw up agendas for the municipal council and the municipal board sittings and submit draft decisions, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the municipal board and the minutes of the sittings that he has chaired”.

The petitioner impugns the compliance of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution to the extent that the said item provides that the mayor determines and draws up agendas for the municipal board sittings and submits draft decisions, signs decisions of the municipal board and the minutes of the sittings that he has chaired.

In order to determine whether Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution to the extent that the said item provides that the mayor determines and draws up agendas for the municipal board sittings and submits draft decisions, signs decisions of the municipal council and the minutes of the sittings that he has chaired, it is necessary to investigate, first of all, whether the provision of Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor of the municipality is an executive municipal institution is not in conflict with the Constitution, also, whether the mayor of the municipality is permitted, by the Constitution, to have powers to head the municipal council and whether he is permitted to have powers to head the municipal board. The investigation into the compliance of the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) that that the mayor determines and draws up agendas for the municipal board sittings and submits draft decisions, signs decisions of the municipal board and the minutes of the sittings that he has chaired with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is inseparable from the investigation into the compliance of the provisions of the aforesaid item that the mayor determines and draws up agendas for the municipal council and submit draft decisions, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings that he has chaired, with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution. Therefore, while determining whether Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) to the extent impugned by the petitioner is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, one has to investigate the compliance of the entire legal regulation established in the aforesaid item with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

5.3. According to the petitioner, the impugned Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) establish the functions of the mayor of the municipality in the capacity of the head of the executive municipal institution. Thus, the petitioner is of the opinion that these items of the aforementioned law to their entire extent are in conflict with the said articles (parts thereof) of the Constitution.

5.4. Subsequent to the petition of the petitioner requesting an investigation into whether the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) as well as Items 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of the same article are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the Constitutional Court will investigate whether Items 1, 5, 6, 7, 9, 12, 14, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

6. The petitioner requests an investigation into whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

6.1. Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000), the compliance of the provision “from among the members of the municipal council” whereof with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is impugned by the petitioner, provides: “For the term of its powers, the municipal council shall form a board from among the members of the municipal council and establish the number of members of the board.”

6.2. The provision “from among the members of the municipal council”, which is pointed out by the petitioner is the fragment of the legal regulation, which is inseparable from the other provisions of Paragraph 1 of Article 18. It is possible to elucidate the normative content of the impugned provision only by investigating the said provision in the context of the entire legal regulation established in Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000).

6.3. Subsequent to the petition of the petitioner requesting an investigation into whether the provision “from among the members of the municipal council” of Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the Constitutional Court will investigate whether Paragraph 1 of Article 18 of the said law is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

7. Items 6 and 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) were amended by the 25 September 2001 Law on the Amendment and Supplement of Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and 37 of the Law on Local Self-Government and the 8 November 2001 Law on the Amendment of Articles 7 and 21 of the Law on Local Self-Government respectively.

7.1. On 25 September 2001, the Seimas adopted the Law on the Amendment and Supplement of Articles 11, 15, 17, 21, 27, 28, 29, 30, 36, and 37 of the Law on Local Self-Government, Article 4 whereof supplemented Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) and established that the mayor “shall administer municipal grants-in-aid, organise the execution of the municipal budget and shall be responsible for the municipal economic and financial activity, or shall empower the municipal administrator to perform everything listed above.”

Meanwhile, Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) the compliance whereof with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution is impugned by the petitioner, provided that the mayor “shall administer municipal grants-in-aid or shall empower the municipal administrator to do so”.

While comparing the legal regulation established in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) with that established in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 25 September 2001), it is clear that the provisions that the mayor “shall administer municipal grants-in-aid or shall empower the municipal administrator to do so” provided for in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) also remained in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 25 September 2001).

7.2. On 8 November 2001, the Seimas adopted the Law on the Amendment of Articles 7 and 21 of the Law on Local Self-Government, by Article 2 whereof Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) was amended and it was established that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, construction permits and shall supervise the use of buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”.

Meanwhile, Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) provided that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, organise coordination of buildings’ projects and issue permits to construct, reconstruct, repair or demolish buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”.

While comparing the legal regulation established in Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 8 November 2001) with that established in whereof Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), it is clear that the provisions of Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), which are impugned by the petitioner, that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, organise coordination of buildings’ projects and issue permits to construct, reconstruct, repair or demolish buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”, even after certain formulations had been amended, virtually remained in Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 8 November 2001).

8. In the case at issue, the Constitutional Court will investigate:

1) whether Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1, 3 and 4 of Article 119 of the Constitution;

2) whether Paragraph 4 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraphs 1, 3 and 4 of Article 119 of the Constitution;

3) whether Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 120 of the Constitution;

4) whether Paragraph 1 of Article 18 (wording of 12 October 2000) and Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution;

5) whether Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), Item 6 of the same paragraph (wordings of 12 October 2000 and 25 September 2001) and Item 14 of the same paragraph (wordings of 12 October 2000 and 8 November 2001) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

II

1. While deciding whether Paragraphs 3 and 4 of Article 3 (wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (wording of 12 October 2000), Paragraph 1 of Article 18 (wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (wording of 12 October 2000), Items 1, 5, 7, 9, 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 (wording of 12 October 2000), Item 6 of the same paragraph (wordings of 12 October 2000 and 25 September 2001), and Item 14 of the same paragraph (wordings of 12 October 2000 and 8 November 2001) of the Law on Local Self-Government are not in conflict with the Constitution, one has to elucidate the concept of local self-government, which is entrenched in the Constitution.

2. The constitutional bases of local self-government are established in Chapter X of the Constitution, which is entitled “Local Self-Government and Administration”, as well as in other provisions of the Constitution.

2.1. While interpreting the concept of local self-government which is established in the Constitution, it needs to be noted that, under Paragraph 1 of Article 119 of the Constitution, the right of self-government shall be guaranteed to the administrative units of state territory which are provided for by law and it shall be implemented through corresponding municipal councils; under Paragraph 2 of the same article (wording of 20 June 2002), the members of the municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct electoral right by secret ballot; under Paragraph 3 of the same article, the procedure for the organisation and activities of self-government institutions shall be established by law; under Paragraph 4 of the same article, for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.

Various aspects of the constitutional concept of self-government are established not only in Article 119 of the Constitution but also in the provisions of other articles of the Constitution: the provision of Article 11 that the administrative units of the territory of the State of Lithuania and their boundaries shall be established by law; the provision of Item 17 of Article 67 that the Seimas shall establish administrative division of the Republic; the provision of Paragraph 1 of Article 120 that the state shall support municipalities; the provision of Paragraph 2 of the same article, that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws; the provision of Paragraph 1 of Article 121 that municipalities shall draft and confirm their own budget; the provision of Paragraph 2 of the same article that municipal councils shall have the right to establish local levies within the limits and in accordance with the procedure provided for by law, and that municipal councils may provide for preferences with respect to taxes and levies at the expense of their own budget; the provision of Article 122 that municipal councils shall have the right to apply to court regarding the violation of their rights; the provision of Paragraph 2 of Article 123 that the observance of the Constitution and the laws, as well as the execution of the decisions of the Government by municipalities shall be supervised by representatives appointed by the Government; the provision of Paragraph 3 of the same article that the powers of the Government representative and the procedure of their execution shall be established by law; the provision of Paragraph 4 of the same article that in cases and in accordance with the procedure provided for by law, the Seimas may temporarily introduce direct administration in the territory of a municipality; the provision of Article 124 that acts and deeds of municipal councils as well as of their executive bodies and officials which violate the rights of citizens and organisations may be appealed in court; the provision of Paragraph 1 of Article 127 that the budgetary system of the Republic of Lithuania shall consist of the independent State Budget of the Republic of Lithuania as well as the independent municipal budgets; the provision of Article 141 that persons performing actual military service or alternative service, as well as officers of the national defence system, of the police and the Interior, non-commissioned officers, re-enlistees and other paid officials of paramilitary and security services who have not retired to the reserve may not be members of municipal councils, etc.

2.2. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution). The constitutional norms are interrelated and constitute an indivisible and harmonious system. It is not permitted to oppose a constitutional provision against other provisions of the Constitution, or to construe it so that the essence of other constitutional norms would be denied or distorted.

In its ruling of 13 June 2000, the Constitutional Court held that it is impossible to interpret the norms set forth in the articles (parts thereof) of the Constitution which were pointed out by the petitioner by keeping them separate from other norms of the Constitution, also, that the Constitutional Court, after it has decided that the impugned act (part thereof) conflicts with the articles (parts thereof) of the Constitution which have not been pointed out by the petitioner, is empowered to state so.

Therefore, the Constitutional Court, while investigating, subsequent to the petition of the petitioner, whether the impugned legal act (part thereof) is not in conflict with the articles (parts thereof) of the Constitution pointed out by the petitioner, alongside also investigates whether the said legal act (part thereof) is not in conflict with the Constitution, an indivisible and harmonious system.

3. At the time of the adoption of the Law on Local Self-Government, Article 119 of the Constitution was set forth in the wording of 12 December 1996:

The right of self-government shall be guaranteed to the administrative units of State territory which are provided for by law. It shall be implemented through corresponding municipal councils.

The members of the municipal councils shall be elected for a three-year term by permanent residents of the administrative unit who are citizens of the Republic of Lithuania, on the basis of universal, equal and direct electoral right by secret ballot.

The procedure for the organisation and activities of self-government institutions shall be established by law.

For the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.”

4. On 20 June 2002, the Seimas adopted the Law on the Alteration of Article 119 of the Constitution (Official Gazette Valstybės žinios, 2002, No. 65-2629), by Article 1 whereof Paragraph 2 of Article 119 of the Constitution was amended and set forth as follows: “The members of the municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct electoral right by secret ballot.”

5. While comparing the legal regulation established in Paragraph 2 of Article 119 of the Constitution (wording of 20 June 2002) with that of Paragraph 2 of Article 119 of the Constitution (wording of 12 December 1996), one can notice that the following amendments have been made: (1) members of municipal councils are elected for a four- but not three-year term of office; (2) not only citizens of the Republic of Lithuania enjoy the active electoral right but also citizens of other states and persons without citizenship in the election of members of municipal councils; (3) the enjoyment of the active electoral right in the election of members of municipal councils is linked with a legal fact, i.e. permanent residence of the person in a corresponding administrative unit; (4) not only citizens of the Republic of Lithuania enjoy the passive electoral right but also citizens of other states and persons without citizenship in the election of members of municipal councils; (5) the enjoyment of the passive electoral right in the election of members of municipal councils is linked with a legal fact, i.e. permanent residence of the person in a corresponding administrative unit.

6. It needs to be noted that it is impossible to construe Paragraphs 1, 3 and 4 of Article 119 of the Constitution, which have been pointed out by the petitioner, separately from Paragraph 2 of the same article, as well as the other articles (parts thereof) of the Constitution, in which the concept of local self-government is entrenched.

7. On the same day when the Law on the Alteration of Article 119 of the Constitution was adopted, the Seimas adopted the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution (Official Gazette Valstybės žinios, 2002, No. 65-2630). Article 1, entitled “The Procedure of the Entry into Effect of this Law” of the latter law, provided: “The provision of Article 1 of the Republic of Lithuania’s Law on the Alteration of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils shall be applicable as of the day of the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office.”

On 20 June 2002, the Seimas also adopted the Republic of Lithuania’s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws (Official Gazette Valstybės žinios, No. 65-6231), Article 1 whereof provided: “The Seimas of the Republic of Lithuania, pursuant to the Third Paragraph of Article 69 of the Constitution of the Republic of Lithuania, enters the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws.”

8. When interpreting the constitutional concept of local self-government, one should pay heed to the fact that under Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, which was adopted on the same day as the Law on the Alteration of Article 119 of the Constitution, the provision of the Law on the Alteration of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils becomes applicable as of the day of the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office. Such legal regulation established in the said constitutional law means that the constitutional novels providing that not only citizens of the Republic of Lithuania enjoy the active and passive electoral right but other persons who are permanent residents of the administrative unit (citizens of other states and persons without citizenship in the election of members of municipal councils), are treated as non-valid and non-applicable until the Seimas adopts a resolution which will appoint the second election of municipal councils for a four-year term of office, and until the said resolution goes into effect.

Therefore, while construing the constitutional concept of local self-government, it is necessary to define as to what extent Paragraph 2 of Article 119 of the Constitution is valid and applicable at present.

9. Paragraph 1 of Article 149 of the Constitution provides that the President of the Republic shall sign the adopted law on an alteration of the Constitution and officially promulgate it within 5 days. Paragraph 2 of the same article provides that, if the President of the Republic does not sign and promulgate such a law during the indicated time, this law shall come into effect when the Speaker of the Seimas signs and promulgates it. The Constitution does not provide that the President of the Republic has the right of delayed veto in connection with laws passed by referendum or in connection with laws amending the Constitution (the Constitutional Court’s ruling of 19 June 2002).

Under Paragraph 3 of Article 149 of the Constitution, the law on an alteration of the Constitution shall come into effect not earlier than one month after the adoption thereof.

Thus, under Paragraph 3 of Article 149 of the Constitution, the Seimas may establish the date of the entry into effect of the law on the alteration of the Constitution in the law on the alteration of the Constitution, however, it is not permitted that the said date be established earlier than one month as of the day of the adoption of the law on the alteration of the Constitution. While adopting the law on the alteration of the Constitution, the Seimas may establish the date of the entry into effect of the said law, which begins only after one month expires after such a law on the alteration of the Constitution is adopted. If the law on the alteration of the Constitution does not establish the date of the entry into effect of the law on the alteration of the Constitution, then, under the Constitution, such a law on the alteration of the Constitution goes into effect after one month expires after the said law is adopted.

The norm whereby the date of the entry into effect of the law on the alteration of the Constitution is established must have the constitutional power and cannot not be the norm of the Constitution itself; under the Constitution, it is not permitted that the date of the entry into effect of the law on the alteration of the Constitution be established by a legal act of lower power. It needs to be noted that the date of the commencement of the entry into effect of a legal act and the date of the commencement of application of its particular norms need not necessarily coincide: it may be established that certain provisions of the legal act are applicable from another (later) date. This may not be established by means of a legal act whose power is lower than the Constitution, as, thus, the hierarchy of legal acts established in the Constitution and the supremacy of the Constitution would be violated.

Thus, the fact that certain provisions of the Constitution are applicable not from the moment of their entry into effect, but from another (later) date, must be established expressis verbis in the law on the alteration of the Constitution.

Thus, if the law on the alteration of the Constitution does not establish another (later) date of the commencement of the application of its certain provisions, the said law on the alteration of the Constitution (its all provisions) must be applied as of the day of its entry into effect. This means that as of the said day in question a corresponding amendment (its all provisions) to the Constitution must be applied.

10. The Law on the Alteration of Article 119 of the Constitution, whereby Paragraph 2 of Article 119 of the Constitution was altered and set forth in a new wording, does not provide for the date of its entry into effect. Thus, the said law went into effect after one month had expired from its adoption, i.e. it came into effect on 21 July 2002. Thus, as of the said day, a corresponding amendment to Paragraph 2 of Article 119 of the Constitution became effective.

Neither the Law on the Alteration of Article 119 of the Constitution, nor any other part of the Constitution, provides that upon the entry into effect of the Law on the Alteration of Article 119 of the Constitution certain provisions of Paragraph 2 of Article 119 of the Constitution are not applicable or that they are applicable as of another (later) date. Thus, all these provisions must be applied as of the day when the amendment to Paragraph 2 of Article 119 of the Constitution went into effect, i.e. as of 21 July 2002.

11. Paragraph 3 of Article 69 of the Constitution provides: “Constitutional laws of the Republic of Lithuania shall be adopted if more than half of all the members of the Seimas vote in favour thereof, while they shall be altered by not less than a 3/5 majority vote of all the members of the Seimas. The Seimas shall establish a list of constitutional laws by a 3/5 majority vote of the members of the Seimas.”

11.1. In its ruling of 2 April 2001, the Constitutional Court held that constitutional laws differ from other laws in the procedure of their adoption and amendment. The special place of constitutional laws in the system of legal acts is determined by the Constitution itself. Constitutional laws may not be amended or abolished by law. Thus, it is ensured that the social relations regulated by means of constitutional laws be not regulated in a different manner and that greater stability of the social relations regulated by means of constitutional laws be guaranteed. Constitutional laws may not conflict with the Constitution, while laws may not conflict with the Constitution and constitutional laws.

Thus, in the hierarchy of legal acts, constitutional laws have lower power than the Constitution itself. The constitutional law may not limit the power of the Constitution or its certain provisions, such a law may not establish, inter alia, the legal regulation which would limit or deny an opportunity to directly apply the Constitution.

11.2. While construing the legal regulation established in Paragraph 3 of Article 69 of the Constitution, the Constitutional Court held in its ruling of 8 November 1993 that only upon the confirmation, under the procedure established in the said paragraph, of the list of constitutional laws, the laws entered into the aforesaid list might be treated as constitutional laws, and the rule of their enactment by the qualified majority of votes, which is established in the Constitution, would have to be applied only to these laws. In the absence of such a list of constitutional laws, the aforesaid procedure of adoption of constitutional laws may not be applied to the adoption of any law, except the law on the establishment of the list of constitutional laws.

Due to the fact that, under the Constitution, constitutional laws may not be altered or abolished by non-constitutional (i.e. common laws), also due to the fact that laws cannot be in conflict with the Constitution and constitutional laws, the list of constitutional laws may, under the Constitution, be established by constitutional law only. According to Paragraph 3 of Article 69 of the Constitution, such a constitutional law must be adopted by a 3/5 majority vote of all the members of the Seimas.

In its ruling of 22 December 1994, the Constitutional Court held that the Constitution does not prescribe another procedure for the establishment of constitutional laws, save that established in Article 69 of the Constitution.

11.3. The concept of constitutional laws entrenched in the Constitution changed upon the adoption of the Republic of Lithuania’s Law on the Alteration of Article 47 of the Constitution (Official Gazette Valstybės žinios, 1996, No. 64-1501) by Article 1 whereof Paragraph 2 of Article 47 of the Constitution was amended and set forth as follows: “Municipalities and other national entities, as well as those foreign entities conducting economic activities in Lithuania that are specified by the constitutional law according to the criteria of European and Transatlantic integration, may be permitted to acquire the ownership of non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities. The procedure, conditions, and limitations on the acquisition of the ownership of such a plot shall be established by means of a constitutional law.”

Thus, in Paragraph 2 of Article 47 of the Constitution it is entrenched expressis verbis that certain relations indicated in the said paragraph are to be regulated by constitutional law.

In its ruling of 2 April 2001, the Constitutional Court held that, under the Constitution, constitutional laws are ones which are directly referred to as such in the Constitution and are adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution, as well as the laws entered on the list of constitutional laws and adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution.

The fact that certain constitutional laws may be pointed out directly in the Constitution, presupposes the constitutional duty of the Seimas to adopt these laws by paying heed to the requirement established in Paragraph 3 of Article 69 of the Constitution that they may be adopted if more than half of all the members of the Seimas vote in favour thereof and that they may be altered by not less than a 3/5 majority vote of all the members of the Seimas.

11.4. It needs to be noted that the Seimas has not adopted a constitutional law yet, whereby the list of constitutional laws is established. According to the Constitution, as long as the constitutional law establishing the list of constitutional laws is not adopted, the Seimas does not have any powers to adopt any constitutional law, unless such a constitutional law is indicated in the Constitution itself, or unless this is the constitutional law whereby the list of constitutional laws is established.

11.5. It has been mentioned that it is established in Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws that the Seimas of the Republic of Lithuania, pursuant to Paragraph 3 of Article 69 of the Constitution of the Republic of Lithuania, enters the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws.

However, the constitutional concept of constitutional laws implies that, as it has been held in this ruling of the Constitutional Court, as long as the constitutional law establishing the list of constitutional laws is not adopted, the Seimas does not have any powers to adopt any constitutional law, unless such a constitutional law is indicated in the Constitution itself, or unless this is the constitutional law whereby the list of constitutional laws is established.

It needs to be noted that the Seimas adopted the Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws after it had adopted the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, even though the constitutional concept of constitutional laws implies that only the constitutional laws entered on the list of constitutional laws, save directly indicated in the Constitution itself and the constitutional law, which established the list of constitutional laws, may be treated as constitutional laws, and the rules established in Paragraph 3 of Article 69 of the Constitution may be applied to the adoption of only such laws.

It has been held in this ruling of the Constitutional Court that the Seimas has not adopted a constitutional law yet, which would establish the list of constitutional laws.

Thus, under the Constitution, the Seimas did not have any powers to adopt the Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws. The entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, as provided in Article 1 thereof, on the list of constitutional laws is null and void.

Alongside, it should be held that, under the Constitution, the Seimas did not have any powers to adopt the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution either, as it had not been entered on the list of constitutional laws, which, under the requirements of the Constitution, must be established by means of a constitutional law adopted by a 3/5 majority vote of the members of the Seimas.

11.6. Taking account of the arguments set forth, it should be held that both said legal acts, i.e. the Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws and the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, according to the procedure of their adoption are not in line with the requirements of Paragraph 3 of Article 69 of the Constitution.

12. It has been mentioned that Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution provides that the provision concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils shall be applicable as of the day of the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office.

12.1. It needs to be noted that although Article 1 of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution is entitled “The Procedure of the Entry into Effect of this Law”, it establishes the date of the commencement of the application of the provision of Article 1 of the said law concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils, but not the date of the commencement of the application of the Law on the Alteration of Article 119 of the Constitution. The Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution does not establish another date of the entry into effect of the Law on the Alteration of Article 119 of the Constitution than follows from the Constitution itself. Taking account of the legal regulation established in the said article, this, in itself, does not imply that the requirement established in Paragraph 3 of Article 149 of the Constitution that the law on an alteration of the Constitution shall come into effect not earlier than one month after the adoption thereof, has been violated.

12.2. According to Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, Paragraph 2 of Article 119 of the Constitution, even after it has gone into effect, is applied not to its full extent: the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils until the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, are not applied. By Article 1 of the aforementioned constitutional law, the application of the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils is made dependent on the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, Thus, preconditions have been created to interfere into the constitutional regulation by the said Seimas resolution.

Thus, Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution establishes another (later) date of the commencement of the application of the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils than that which follows from the Constitution itself.

After Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution had established another (later) date of the commencement of the application of the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils than that which follows from the Constitution itself, the legal regulation established in Paragraph 2 of Article 119 of the Constitution was disregarded.

13. Paragraph 1 of Article 6 of the Constitution provides: “The Constitution shall be an integral and directly applicable act.”

13.1. The discretion of the legislature to pass laws, including those in which the procedure of the application of the provisions of the Constitution is regulated, is limited by the Constitution; the legislature must pay heed to the norms and principles of the Constitution.

Thus, under the Constitution, the legislature does not have the right to establish the legal regulation which might limit or deny the opportunity to directly apply the Constitution.

13.2. It has been mentioned that, according to Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, Paragraph 2 of Article 119 of the Constitution, even after it has gone into effect, is applied not to its full extent (the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils until the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, are not applied), also, that Article 1 of the said constitutional law establishes another (later) date of the commencement of the application of these provisions than that which follows from the Constitution itself.

Under the Constitution, it was not permitted to establish in the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution the date of the commencement of the application of the provisions of the Law on the Alteration of Article 119 of the Constitution other than that which follows from the Constitution itself, as thereby the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be an integral and directly applicable act would be violated.

By establishing by Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution that until the day of the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils shall not be applicable, and upon the establishment of another (later) date of the commencement of the application of the provisions of Paragraph 2 of Article 119 of the Constitution than that following from the Constitution, one disregards the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution shall be an integral and directly applicable act.

14. The principle of the supremacy of the Constitution is a fundamental requirement of a democratic state under the rule of law.

14.1. The principle of the supremacy of the Constitution is entrenched in Paragraph 1 of Article 7 of the Constitution which provides that any law or other act, which is inconsistent with the Constitution, shall be invalid; the same principle is also entrenched in various aspects in Paragraph 2 of Article 5 of the Constitution which provides that the scope of power shall be limited by the Constitution, Paragraph 1 of Article 6 which provides that the Constitution shall be an integral and directly applicable act, Paragraph 2 of Article 6 which provides that everyone may defend his rights on the grounds of the Constitution, Paragraph 1 of Article 30 which provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, Paragraph 1 of Article 102 which provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether acts of the President of the Republic and the Government are not in conflict with the Constitution or laws, Paragraph 1 of Article 110 which provides that a judge may not apply a law that is in conflict with the Constitution, etc.

The principle of the supremacy of the Constitution means that the Constitution rests in the exceptional, highest, place in the hierarchy of legal acts, that no legal act may be in conflict with the Constitution, that no one is permitted to violate the Constitution, that the constitutional order must be protected, that the Constitution itself consolidates the mechanism permitting determining whether legal acts (parts thereof) are not in conflict with the Constitution. In this respect, the principle of the supremacy of the Constitution, which is established in the Constitution, is inseparably linked with the constitutional principle of a state under the rule of law, which is a universal constitutional principle upon which the entire Lithuanian legal system and the Constitution itself are based. Violation of the principle of the supremacy of the Constitution would mean that the constitutional principle of a state under the rule of law is violated as well.

14.2. Under the Constitution, it was not permitted to establish in the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution the date of the commencement of the application of the provisions of the Law on the Alteration of Article 119 of the Constitution other than that which follows from the Constitution itself, as thereby the principle of the supremacy of the Constitution and the constitutional principle of a state under the rule of law would be violated.

It has been held in this ruling of the Constitutional Court that according to Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, Paragraph 2 of Article 119 of the Constitution, even after it has gone into effect, is applied not to its full extent (the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils until the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, are not applied), also, that Article 1 of the said constitutional law establishes another (later) date of the commencement of the application of these provisions than that which follows from the Constitution itself. It has also been held that by the legal regulation established in Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution preconditions were created to interfere into the constitutional regulation by the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office.

After Article 1 entitled “The Procedure of the Entry into Effect of this Law” of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution had established that the provisions of Paragraph 2 of Article 119 of the Constitution concerning the participation, under the law, of other permanent residents of the administrative unit in the elections of municipal councils shall not be applied until the entry into effect of the Seimas resolution, which will appoint the second election of municipal councils for a four-year term of office, and after one had established another (later) date of the commencement of the application of these constitutional provisions, one disregarded the principle of the supremacy of the Constitution and the constitutional principle of a state under the rule of law.

15. The Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution contains only said Article 1 entitled “The Procedure of the Entry into Effect of this Law”. Thus, the conclusions on the compliance of Article 1 of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution with the Constitution are conclusions concerning the compliance of this entire constitutional law with the Constitution.

16. Taking account of the arguments set forth, it should be concluded that:

1) the Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws is in conflict with Paragraph 3 of Article 69 of the Constitution according to the procedure of its adoption;

2) the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution is in conflict with Paragraph 1 of Article 6, Paragraph 2 of Article 119 of the Constitution and the principle of the supremacy of the Constitution which is entrenched in the Constitution as well as the constitutional principle of a state under the rule of law, while under the procedure of its adoption it is in conflict with Paragraph 3 of Article 69 of the Constitution.

17. It has been mentioned that the constitutional bases of local self-government are established in Chapter X of the Constitution, which is entitled “Local Self-Government and Administration”, as well as in other provisions of the Constitution.

While construing, in a systemic manner, the said provisions of the Constitution as well as the provisions thereof in which the constitutional bases of the functioning of state authority are established, it becomes clear that the Constitution distinguishes two systems of public authority: state administration and local self-government.

17.1. Under Article 11 and Item 17 of Article 67 of the Constitution, the Seimas establishes the administrative units of the territory of the State of Lithuania and their boundaries by law. In higher level administrative units, the administration shall be organised by the Government in accordance with the procedure established by law (Paragraph 1 of Article 123 of the Constitution), while the right of self-government shall be guaranteed to the administrative units of state territory which are provided for by law (Paragraph 1 of Article 119 of the Constitution). Under the Constitution, local self-government is self-regulation and self-action of the communities of the administrative units of state territory, in accordance with the competence defined by the Constitution and laws, which are provided for by law (i.e. territorial or local communities), and which are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents). The said territorial communities are an entity of self-government law and are referred to in the Constitution as municipalities (or local municipalities).

Thus, a municipality is the community of an administrative unit of state territory which enjoys the right to self-government guaranteed by the Constitution. In its ruling of 18 February 1998, the Constitutional Court held that the Constitution determines local self-government as a local public administration system operating on the basis of self-action principles, which is not directly subordinate to state authority institutions. The system of municipalities is decentralised.

The provision of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, should be regarded as a guarantee for the participation of these communities in the administration of these territories (the Constitutional Court’s ruling of 28 June 2001).

17.2. Local self-government is the power of territorial communities of administrative units that are provided for by law, which is formed and functions on other constitutional grounds than state authority. The Constitution does not identify self-government with state administration (the Constitutional Court’s ruling of 14 January 2002). State administration and local self-government, as two systems of the implementation of public authority, are related, however, each of them implements the functions which are characteristic of it only.

The independence of municipalities and freedom of their activities within the competence limited by the Constitution and laws are constitutional principles. In its ruling of 13 June 2000, the Constitutional Court held that the norm of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently may not be kept separate from the provision established in the same paragraph of the same article that the freedom and independence of municipalities are bound by the competence established by the Constitution and laws.

Paragraph 2 of Article 120 of the Constitution provides that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws. Under the Constitution, it is not permitted to establish the legal regulation whereby the opportunity for municipalities to realise their competence directly established in the Constitution would be denied.

The constitutional provision that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, also means that in case the Constitution or laws assign certain functions to municipalities, then municipalities discharge these functions to the extent that they are assigned such functions. This means that a certain part of the competence of municipalities must be implemented directly, that the implementation of decisions adopted by municipal councils within the limits of their competence must not be bound by decisions (permissions, consents, etc.) of certain state institutions or officials. However, it needs to be emphasised that even the functions which exclusively belong to municipalities are regulated by law. Not a single one of these functions mean that in a respective area municipalities are absolutely independent.

In addition to the functions which belong exclusively to municipalities, they may be commissioned to discharge certain state functions; thus, a more efficient connection between state authority and citizens as well as democracy of administration are ensured. In discharging these functions, the activities of municipalities are bound by corresponding decisions of state authority institutions and/or officials. Under the Constitution, such state functions must be transferred to municipalities by law.

In its ruling of 14 January 2002, while construing the provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, together with the provision of Paragraph 1 of Article 121 of the Constitution that municipalities shall draft and confirm their own budget and the provision of Paragraph 1 of Article 127 of the Constitution that the budgetary system of the Republic of Lithuania shall consist of the independent State Budget of the Republic of Lithuania as well as the independent municipal budgets, the Constitutional Court held that the independence of the activities of municipalities, which is entrenched in the Constitution, and which is within the limits of the competence defined in the Constitution and laws, implies that if municipalities are transferred state functions by law, or if they are given duties by law or other legal acts, funds must be provided for the implementation of these functions (duties), also, if, before the end of a budget year, municipalities are transferred additional state functions (are given duties), for this purpose funds must be allocated as well. Under the Constitution, municipalities must observe the laws, thus, also the laws whereby the municipalities are obligated to exercise the functions transferred to them by the state. Municipalities would be unable to exercise such duties unless their implementation were not guaranteed by financial means. The funds for the implementation of the functions transferred by the state to municipalities must be provided for in the law on the state budget. The independence of activities of municipalities within the limits of the competence established by the Constitution and laws and the support of the state for municipalities, coordination of the interests of municipalities and those of the state, which are entrenched in the Constitution, imply that funds (municipal revenues and their sources) must be provided for in the state budget, necessary for the ensuring of the fully-fledged functioning of self-government and for the implementation of functions of municipalities.

17.3. In itself, the fact that the Constitution does not identify local self-government with state administration does not mean that there is no interaction between state administration and local self-government.

It has been mentioned that Paragraph 1 of Article 119 of the Constitution provides that the right of self-government is guaranteed to the administrative units of state territory which are provided for by law. Paragraph 1 of Article 123 of the Constitution provides that in higher level administrative units, the administration shall be organised by the Government in accordance with the procedure established by law. The observance of the Constitution and the laws, as well as the execution of the decisions of the Government by municipalities shall be supervised by representatives appointed by the Government (Paragraph 2 of Article 123 of the Constitution). Paragraph 4 of Article 123 of the Constitution provides that in cases and in accordance with the procedure provided for by law, the Seimas may temporarily introduce direct administration in the territory of a municipality.

It also needs noted that, under Paragraph 1 of Article 120 of the Constitution, the state shall support municipalities.

Thus, centralised state administration in administrative territorial units is coordinated with decentralisation, while consolidating the cooperation between central state institutions and municipalities by law (the Constitutional Court’s ruling of 22 October 1996). The principle of coordination of the interests of municipalities and the state manifests itself not only in the support of municipalities by the state in various ways and forms or in the supervision by the state of the activities of municipalities in the forms prescribed by law, but also in the coordination of common actions when important social objectives are sought (the Constitutional Court’s ruling of 18 February 1998).

It needs to be noted that, while defining the competence of municipalities by law and organising state administration in the territory of a municipality, one must pay heed to the principles of the freedom and independence of activities of municipalities within their competence, which are established by the Constitution and laws, and the principles of coordination of interests of municipalities and the state, which are entrenched in the Constitution. Therefore, it is not permitted to oppose the principle of coordination of interests of municipalities and the state, which is entrenched in the Constitution, against the constitutional principles of the freedom and independence of activities of municipalities within their competence, which are established by the Constitution and laws.

17.4. It has been mentioned that the Constitution does not identify local self-government with state administration. State administration is implemented through state authority establishments as well as other state institutions indicated in the Constitution and laws. The right of self-government is implemented through self-government institutions—municipal councils; municipal councils form bodies which are accountable to them. The constitutional principles upon which the organisation of state authority and the organisation of self-government are based are only overlapping in part.

17.4.1. Under the Constitution, the organisation of state authority and its activity are based on the principle of the separation of powers. The Constitutional Court has held in its rulings more than once that the constitutional principle of the separation of powers implies, among other requirements, that the legislative, executive and judicial powers must be separated, sufficiently independent, however, there must be a balance between them, also, that the competence is established for every state institution which corresponds to its purpose, and the particular content of which depends on the place of the branch of power in question in the entire system of branches of state power as well as its relation with the other branches of power, also, that upon the direct establishment of the powers of a particular state institution in the Constitution, one state institution may not take over such powers from another state institution, transfer or waive them, also, that such powers may not be changed or limited by law.

17.4.2. It also needs to be noted that the system of branches of state power encompasses legislative, executive and judicial powers; the constitutional principle of the separation of powers determines the relations of the aforementioned three branches of state power. There are not any such powers on the level of local self-government; the Constitution only provides for municipal councils—representations of territorial communities—and executive bodies which are formed by and accountable to municipal councils. The Constitution consolidates the principle of supremacy of municipal councils in regard to the executive bodies which are accountable to the former.

17.4.3. In the context of the case at issue, it needs to be noted that the constitutional principle of the separation of powers is not identical to the constitutional principle of the accountability of executive bodies to the representation, on which, inter alia, the relations between the state legislative power and the institutions of the executive power, as well as the organisation and activity of self-government institutions, are based.

Under the Constitution, the Seimas carries out the parliamentary control over the Government. Upon the request of the Seimas, the Government or individual Ministers must give an account of their activities to the Seimas (Paragraph 1 of Article 101 of the Constitution). Thus, the separation of powers in the Constitution also implies the accountability of the Government, a collegial institution of the executive, to the legislative power, the representation of the Nation.

Municipal councils are formed on the basis of universal, equal and direct electoral right by secret ballot (Paragraph 2 of Article 119 of the Constitution); they form executive bodies which are accountable to them (Paragraph 4 of Article 119 of the Constitution). Thus, the relations between municipal councils and their executive bodies are based on the constitutional principle of accountability of executive bodies to the representation.

Alongside, it needs to be noted that the constitutional principle of accountability of executive bodies to the representation has certain peculiarities on the state administration level and on the local self-government level. For instance, under Paragraph 2 of Article 60 of the Constitution, a member of the Seimas (i.e. the representation of the Nation) may be appointed only either as Prime Minister or Minister (i.e. as member of a collegial institution, which is accountable to the Seimas). Meanwhile, an analogous reservation on the self-government level whereby a member of the representation might be a member of the executive body which is accountable to the municipal council is not provided for in the Constitution.

17.4.4. Thus, constitutional principles of the separation of powers and of the accountability of executive bodies to the representation are not identical as regards their content as well as the application to a corresponding sphere. The relations between municipal councils and their executive bodies are based on the constitutional principles of the accountability of executive bodies to the representation and the supremacy of municipal councils over the executive bodies accountable to them, however, not on the principle of the separation of powers.

18. It has been mentioned that the Constitution names communities of state administrative territorial units (territorial communities) as municipalities (or local municipalities). On the other hand, the right of self-government is inseparable from the institutions through which the said right is implemented and/or from the organisation and activities of the institutions which are accountable to them.

Therefore, it is not coincidence that the Constitution employs the notion of municipality not only in the sense of the territorial community of an administrative unit but also in the sense of local self-government institutions and/or the institutions which are accountable to them (e.g. Paragraph 1 of Article 73, Paragraph 2 of Article 120, Paragraph 1 of Article 121, and Paragraph 2 of Article 123).

19. Municipal councils as self-government institutions are directly provided for in the Constitution; the Constitution does not indicate any other self-government institutions. In the context of the case at issue, it needs to be noted that the notion “self-government institutions” expresses the constitutional purpose of corresponding institutions of territorial communities of administrative units: they are institutions through which the right of self-government of respective communities is implemented.

20. The implementation of the right of self-government is impossible without democratic representation. Municipal councils, as self-government institutions, are representative institutions. While forming municipal councils, one must pay heed to the principles of election of municipal council members, which are established in Paragraph 2 of Article 119 of the Constitution, as well as other requirements of the Constitution.

20.1. Under Paragraph 1 of Article 34 of the Constitution, citizens who, on the day of the election, have reached 18 years of age, shall have the electoral right. Paragraph 2 of the same article provides that the right to stand for election shall be established by the Constitution of the Republic of Lithuania and by the election laws, while Paragraph 3 thereof provides that citizens who are recognised as incapable by a court shall not participate in elections.

20.2. Under Paragraph 2 of Article 119 of the Constitution, the members of the municipal councils shall be elected by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct electoral right by secret ballot; the same paragraph also provides that the members of the municipal councils are elected as provided for by law. Thus, the legislature has the constitutional competence to regulate the procedure of municipal council elections by law. The discretion of the legislature in the regulation of the procedure of municipal council elections is bound by the Constitution.

Paragraph 2 of Article 119 of the Constitution links the enjoyment of the active electoral right in the election of members of municipal councils with a legal fact, i.e. permanent residence of the person in a corresponding administrative unit. This means that the legislature has a constitutional duty to establish such a procedure for determination of the fact of the permanent residence of the person in a corresponding administrative unit so that municipal council members would only be elected by the persons who could reasonably be held permanent residents of corresponding administrative units. Otherwise, one would deviate from the constitutional concept of local self-government.

20.3. Under Paragraph 2 of Article 119 of the Constitution, citizens of the Republic of Lithuania as well as other permanent residents of the administrative unit may stand for election as municipal council members.

Paragraph 2 of Article 119 of the Constitution links the enjoyment of the passive electoral right in the election of members of municipal councils with a legal fact, i.e. permanent residence of the person in a corresponding administrative unit. This means that the legislature has a constitutional duty to establish such a procedure for determination of the fact of the permanent residence of the person in a corresponding administrative unit so that municipal council members would only be elected from the persons who could reasonably be held permanent residents of corresponding administrative units. Otherwise, one would deviate from the constitutional concept of local self-government.

20.4. The limitations to the passive electoral right in the election of municipal council members are established in the Constitution.

20.4.1. Under Article 141 of the Constitution, persons performing actual military service or alternative service, as well as officers of the national defence system, of the police and the Interior, non-commissioned officers, re-enlistees and other paid officials of paramilitary and security services who have not retired to the reserve may not be members of municipal councils.

It has been mentioned that, under the Constitution, state administration and local self-government are two systems of public authority. Under Paragraph 1 of Article 5 of the Constitution, in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute state power. The President of the Republic shall be Head of State; he shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws (Article 77 of the Constitution). The President of the Republic may not be a member of the Seimas, hold any other office, and may not receive any remuneration other than the remuneration established for the President of the Republic as well as remuneration for creative activities (Paragraph 1 of Article 83 of the Constitution). Members of the Seimas are representatives of the Nation (Paragraph 1 of Article 55 of the Constitution). In office, members of the Seimas shall follow the Constitution of the Republic of Lithuania, the interests of the State, as well as their own consciences, and may not be bound by any mandates (Paragraph 4 of Article 59 of the Constitution). The duties of a member of the Seimas, with the exception of his duties in the Seimas, shall be incompatible with any other duties in State institutions and organisations, as well as with work in business, commercial and other private establishments or enterprises (Paragraph 1 of Article 60 of the Constitution). A member of the Seimas may be appointed only either as Prime Minister or Minister (Paragraph 2 of Article 60 of the Constitution). The Government of the Republic of Lithuania shall consist of the Prime Minister and Ministers (Article 91 of the Constitution). The Prime Minister and Ministers may not hold any other elective or appointive office, may not work in business, commercial or other private establishments or enterprises, and may not receive any remuneration other than that established for their respective Government offices and payment for creative activities (Article 99 of the Constitution). Courts administer justice (Paragraph 1 of Article 109 of the Constitution). The judge may not hold any other elective or appointive office, may not work in any business, commercial, or other private establishments or enterprises; he is also not permitted to receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities (Paragraph 1 of Article 113 of the Constitution).

The same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented. The Constitution consolidates the principle of the prohibition on a dual mandate. Besides, it needs to be noted that in order that they might be able to discharge the functions prescribed to them in the Constitution in the implementation of state authority, the Constitution provides for a special legal status for the President of the Republic, members of the Seimas, members of the Government and judges, which, inter alia, includes the limitations on work, remuneration and political activities, also a special procedure of removal from office or revocation of the mandate and/or immunities: inviolability of the person and a special procedure of application of criminal and/or administrative liability. Members of municipal councils, under the Constitution, do not enjoy the aforesaid immunities, therefore, under the Constitution, there may not be any such legal situation when persons enjoying the said immunities are members of municipal councils. Under the Constitution, members of municipal councils may not be unequal in their legal status.

Under the Constitution, the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either.

20.4.2. The said requirements of the Constitution do not mean that the aforementioned persons do not have the right to seek to stand for election as members of municipal councils (i.e. it does not mean that they do not enjoy the passive electoral right in the election of members of municipal councils), but that in cases when there occurs a legal situation when a person indicated in Article 141 of the Constitution or a person discharging the functions of state authority, or a state official who, under the Constitution and laws, enjoys the powers to control or supervise the activities of municipalities, is elected a member of a municipal council, he, before the newly elected municipal council convenes to the first sitting, must decide whether to remain in office or to be a member of the municipal council.

21. Under the Constitution, decisions adopted by municipal councils are inseparable from the execution of these decisions.

21.1. Under Paragraph 4 of Article 119 of the Constitution, for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it. The establishment of such executive bodies is a constitutional duty of municipal councils. Decisions of municipal councils are directly implemented by the executive bodies which are accountable to them, and which are inseparable part of the self-government mechanism.

21.2. The Constitution does not establish any types of executive bodies (collegial, single-person bodies), which are accountable to municipal councils, nor the procedure of their formation, their names, and interrelations; their functions and competence are established in general terms: under Paragraph 4 of Article 119, the executive bodies accountable to municipal councils are established for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council. The establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. When regulating the formation, functions and competence of the executive bodies accountable to municipal councils by law, one must pay heed to the principles of local self-government, which are established in the Constitution: the representative democracy, accountability of executive bodies to the representation, the supremacy of municipal councils in respect to the executive bodies which are accountable to them, etc.

The formula “the municipal council shall establish executive bodies” which is employed in Paragraph 4 of Article 119 of the Constitution also implies that the legislature enjoys the discretion to establish by law as to the procedure, whether by election or in other fashion, the said executive bodies are formed, also, which of the said bodies are collegial and which are single-person, also, the type of their interrelations. The legislature also enjoys the discretion to establish by law the structure of collegial executive bodies and the number of their members, or to leave it, by law, to be done by municipal councils.

The principle of accountability of executive bodies to the representation also implies that the executive bodies accountable to municipal councils must be formed for the term of office of the municipal council.

21.3. It needs to be noted that the executive bodies indicated in Paragraph 4 of Article 119 of the Constitution are the institutions which are established for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council. The said executive bodies are not internal structural units (sub-units) of municipal councils, which have to ensure the work of the municipal council itself.

It has been mentioned that the Constitution consolidates the principle of supremacy of municipal councils in regard to the executive bodies which are accountable to the former. The municipal councils have the powers to control the executive bodies which are established by and accountable to the former.

Thus, under the Constitution, the executive bodies accountable to municipal councils may not be formed from among members of the municipal councils which establish them.

It has also been mentioned that, under the Constitution, decisions adopted by municipal councils are inseparable from the execution of these decisions, and that the executive bodies which are accountable to municipal councils are inseparable part of the self-government mechanism. It needs to be noted that it is clear from the provisions of Article 141 of the Constitution and other provisions of the Constitution that military, paramilitary and security services are separated from the civil service. Thus, the persons pointed out in Article 141 of the Constitution, who are performing actual military service or alternative service, as well as officers of the national defence system, of the police and the Interior, non-commissioned officers, re-enlistees and other paid officials of paramilitary and security services who have not retired to the reserve may be neither members municipal councils nor officials or employees of the executive bodies which are established by municipal councils and which are accountable to the latter.

Under the Constitution, the persons who discharge the functions of the implementation of state authority, also the state officials who, according to the Constitution and laws, enjoy the powers to control or supervise the activities of municipal councils, may not be officials or employees of the aforesaid executive bodies, either.

21.4. It needs to be noted that executive bodies which are accountable to municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities, i.e. as self-government institutions, since under Paragraph 1 of Article 119 of the Constitution the right of self-government is implemented through municipal councils. It has been mentioned that the municipal councils have the constitutional competence to control the said executive bodies. Therefore, the said executive bodies may not replace municipal councils, or to bring municipal councils under their control, or to dictate them. The powers of the executive bodies may not be dominant in respect to the powers of municipal councils. It is not permitted to establish the legal regulation whereby the executive bodies accountable to municipal councils would be equated to the municipal councils which have established them, let alone the legal regulation whereby the powers of the executive bodies established by and accountable to municipal councils would restrict the powers of the latter, or under which municipal councils would lose an opportunity to control the executive bodies established by and accountable to them.

The provision of Paragraph 4 of Article 119 of the Constitution that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it also means that all decisions of the said executive bodies must be grounded on laws, as well as decisions of the Government and/or corresponding municipal councils. Under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt decisions which are not grounded on laws, decisions of the Government and/or corresponding municipal councils, also such which, by their legal power, would compete with those passed by the municipal councils.

21.4.1. It has been mentioned that that the Constitution consolidates the principle of supremacy of municipal councils in regard to the executive bodies which are accountable to them. Thus, under the Constitution, it is not permitted to establish any such legal regulation whereby the decision on the issues categorised expressis verbis by the Constitution as belonging to the municipality would by adopted not by municipal councils but by the executive bodies established by and accountable to them.

It needs to be noted that the competence of municipalities is defined expressis verbis in the Constitution in Paragraph 1 of Article 40 which, inter alia, indicates municipal establishments of teaching and education; Paragraph 2 of Article 41 which, inter alia, indicates municipal schools of general education, vocational schools and schools of further education; Paragraph 2 of Article 47 which, inter alia, provides that municipalities may be permitted to acquire the ownership of non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities; Paragraph 4 of Article 119 which provides that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it; Paragraph 1 of Article 121 which provides that municipalities shall draft and confirm their own budget; Paragraph 2 of Article 121 which provides that municipal councils shall have the right to establish local levies within the limits and in accordance with the procedure provided for by law, and that municipal councils may provide for preferences with respect to taxes and levies at the expense of their own budget; Article 122 which provides that municipal councils shall have the right to apply to court regarding the violation of their rights.

The adoption of the decisions on the municipal issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution is the exclusive constitutional competence of municipal councils. Under the Constitution, it is not permitted to establish the legal regulation which would create legal preconditions for executive bodies accountable to municipal councils to interfere with the exclusive constitutional competence of municipal councils in the adoption of the decisions on the issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution.

21.4.2. It has been held in this ruling of the Constitutional Court that the establishment, by law, of the functions and competence of the executive bodies accountable to municipal councils is left to be done by the Seimas. However, as it has been mentioned, the principles of accountability of executive bodies to the representation and of supremacy of municipal councils in regard to the executive bodies which are accountable to them, both of which are established in the Constitution, imply that the municipal councils have the powers to control the executive bodies which are established by and accountable to them. Under the Constitution, the right of self-government is implemented through municipal councils, thus, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils.

21.5. Corresponding functions and appropriate competence are established to municipal institutions.

Constitution provides for two types of municipal institutions: municipal councils (representative institutions) and the executive bodies accountable to them (executive institutions). In the cases established in the Constitution and laws, authoritative empowerments are granted to the municipal representative and executive institutions. Such municipal institutions are institutions of municipal power and institutions of public administration.

As decisions adopted by municipal councils are inseparable from the execution of these decisions, then the municipal representative institutions as well as the municipal executive institutions, both of which are provided for in the Constitution, according to their competence are responsible for the implementation of the right of self-government and for the direct implementation of the laws, the decisions of the Government and the municipal council.

21.6. Municipal councils, while implementing the right of self-government guaranteed by the Constitution, may also establish other municipal institutions and other municipal establishments which have authoritative empowerments. In the context of the case at issue, it needs to be noted that the notion “municipal institutions” means that respective institutions belong to a certain municipality. Municipal institutions are established so that the interests of the municipality would be realised, laws and decisions of the Government and the municipal council would be directly implemented. Thus, municipal councils, as well as the executive bodies accountable to them, and other institutions established by municipal councils, are to be regarded as “municipal institutions”.

III

On the compliance of Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government with Paragraph 2 of Article 5 and Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and that of Paragraph 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government with Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

1. Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government provides: “Municipal institutions shall be a representative institution—municipal council, and executive institutions—the municipal board (hereinafter referred to as the Board) and the mayor of the municipality (hereinafter referred to as the Mayor), which shall have the rights and duties of local power and public administration. Municipal institutions shall be responsible for the implementation of the rights of self-government and their functions in the interest of the community.”

Paragraph 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government provides: “The municipal control institution shall be the municipal controller, who controls the use of the municipal budget and discharges the functions of municipal inner audit.”

2. The petitioner requests an investigation into whether Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and whether Paragraph 4 of Article 3 (wording of 12 October 2000) of the same law is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

3. While deciding whether Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1, 3, and 4 of Article 119 of the Constitution, and that of Paragraph 4 of Article 3 (wording of 12 October 2000) of the same law is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution, it should be noted that, as it has been mentioned in this ruling of the Constitutional Court, Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines the notion “municipal institutions”: (1) while listing municipal institutions and grouping them: the municipal council is a representative institution, meanwhile, the municipal board and the mayor of the municipality are executive institutions; (2) while marking distinctive features of municipal institutions, i.e. the features which make these institutions different from other institutions: the rights and duties of local power and public administration, responsibility for the implementation of the right of self-government and their functions in the interests of the community. It has also been held in this ruling of the Constitutional Court that Paragraph 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government defines the notion “the municipal control institution”: (1) while naming the municipal control institution: the municipal controller; (2) while marking distinctive features of the municipal control institution, i.e. the features which makes this institution different from other institutions: the control over the use of the municipal budget, and discharging the functions of the municipal inner audit.

3.1. After it has been established in Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government that the municipal council is the municipal representative institution, and that the municipal board and the mayor of the municipality are executive institutions, and after it has been established in Paragraph 4 of the same article (wording of 12 October 2000) of the Law on Local Self-Government that the municipal controller is the municipal control institution, the provisions of the constitutional concept of local self-government are realised that municipal councils and the executive bodies accountable to them are municipal institutions, that municipal councils are municipal representative institutions, that the Seimas has the competence to establish, by law, types, names, and competence of the executive bodies accountable to municipal councils, that municipal councils, while implementing the right of self-government which is guaranteed by the Constitution, may also establish other institutions, also, that the said other institutions established by municipal councils are municipal institutions.

The legal regulation established in Paragraphs 3 and 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government does not violate the provision of Paragraph 1 of Article 119 of the Constitution that the right of self-government shall be guaranteed to the administrative units of state territory which are provided for by law and that this right shall be implemented through corresponding municipal councils, the provision of Paragraph 3 of the same article that the procedure for the organisation and activities of self-government institutions shall be established by law, and the provision of Paragraph 4 of the same article that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it. Such legal regulation established in Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government does not violate the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution, either.

3.2. After it has been established in Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government that municipal institutions have the rights and duties of local power and public administration, and that they are responsible for the implementation of the right of self-government and for the discharging of their functions in the interests of the community, and, after it has been established in Paragraph 4 (wording of 12 October 2000) of the same article that the municipal controller controls the use of the municipal budget and discharges the functions of municipal inner audit, the provisions of the constitutional concept of local self-government are realised that municipal institutions are established so that the interests of municipalities would be realised, also, that laws and decisions of the Government and the municipal council would be directly implemented, that decisions adopted by municipal councils are inseparable from the execution of these decisions, that corresponding competence and according functions are established for municipal institutions, that in the cases provided for in the Constitution and laws authoritative empowerments are granted to municipal representative and executive institutions, and that such municipal institutions are municipal institutions of power and of public administration, that the municipal representative and executive institutions of power and public administration are responsible for the implementation of the right of self-government within their competence, also, that both the municipal representative institutions which are provided for in the Constitution and the municipal executive institutions are responsible within their competence for the implementation of the right of self-government, and for the direct implementation of the laws of the Republic of Lithuania as well as the decisions of the Government and the municipal council.

The legal regulation established in Paragraphs 3 and 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government does not mean that the executive bodies established by municipal councils and accountable to them are equated to the municipal councils, through which, under the Constitution, the right of local self-government is implemented, and which have established the said executive bodies. In this context, it needs to be noted that it is established in Paragraph 1 of Article 11 (wording of 12 October 2000) of the Law on Local Self-Government that the municipal council is the institution which implements the right of self-government.

The legal regulation established in Paragraphs 3 and 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government does not violate the provisions of Paragraph 1 of Article 119 of the Constitution that the right of self-government shall be guaranteed to the administrative units of state territory which are provided for by law, and that it shall be implemented through corresponding municipal councils, the provision of Paragraph 3 of the same article that the procedure for the organisation and activities of self-government institutions shall be established by law, and the provision of Paragraph 4 of the same article that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it. By the legal regulation established in Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution is not violated, either.

4. Taking account of the arguments set forth, the following conclusions should be drawn:

1) Paragraph 3 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government is not in conflict with Paragraph 2 of Article 5, and Paragraphs 1, 3, and 4 of Article 119 of the Constitution;

2) Paragraph 4 of Article 3 (wording of 12 October 2000) of the Law on Local Self-Government is not in conflict with Paragraphs 1, 3, and 4 of Article 119 of the Constitution.

IV

On the compliance of Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 120 of the Constitution

1. Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) provides:

Functions of municipalities, according to the freedom of adoption of decisions, shall be grouped into:

1) Independent. Municipalities shall exercise such functions in accordance with the competence granted to them by law, obligations undertaken before their community, and in their interests. When implementing the said functions, municipalities shall have the freedom of initiative of decisions, their adoption and implementation, and shall be responsible for the discharging of the said functions;

2) Assigned (independent-limited). When implementing this and other laws, as well as other legal acts adopted on the basis thereof, municipalities shall exercise these functions, while taking into consideration local conditions and circumstances;

3) State (transferred to municipalities). These shall be state functions transferred to municipalities, while taking into consideration the interests of the residents. The said functions shall be transferred by law and implemented in conformity with legal acts. When implementing the said functions, municipalities shall have the freedom of adoption of decisions, as prescribed by law;

4) Contractual. The implementation of such functions shall be based on contracts.”

2. The petitioner requests an investigation into whether Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 120 of the Constitution.

3. Paragraph 2 of Article 120 of the Constitution provides: “Municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws”.

4. It has been held in this ruling of the Constitutional Court that the Constitution establishes the principle of independence and freedom of activity of municipalities within the competence defined by the Constitution and laws. Therefore, according to the Constitution, the competence of municipalities may and must be defined by law.

The Constitution does not group the functions of municipalities into state, assigned, independent or any other types. Paragraph 3 of Article 119 of the Constitution provides that the procedure for the organisation and activities of self-government institutions shall be established by law. It is within the competence of the legislature to establish functions of municipalities and their types by law (the Constitutional Court’s ruling of 14 January 2002). When establishing the functions of municipalities and their types, the legislature must pay heed to the principle of independence and freedom of municipal activities within the competence defined by the Constitution and laws, the principle of coordination of municipal and state interests, which are entrenched in the Constitution, as well as the constitutional concept of local self-government.

5. The legislature, while having constitutional powers to define the functions and competence of municipalities by law, may also establish the functions of municipalities and their types by law on the basis of freedom of adoption of decisions. The principle of independence of municipal activities within the competence defined by the Constitution and laws, and that of coordination of interests of municipalities and the state, which are established in the Constitution, imply that the degree of independence of municipalities, while implementing various functions provided by law, may be different.

6. Since all functions of municipalities are discharged within the competence defined by the Constitution and laws, all of them are assigned to municipalities for the discharging in this respect; none of them means absolute independence of municipalities in a corresponding area.

7. Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) employs the formula “assigned (independent-limited)”. Such a name of one of the types of municipal functions implies that the freedom of municipal activities, while implementing the functions of the said type, is bound by corresponding decisions of state institutions and/or officials. The degree of this binding may be different. The legislature, under the Constitution, having the competence to establish, by law, municipal functions and their types, may distinguish certain assigned municipal functions in the discharging of which municipalities enjoy greater freedom, as a separate category. It is important that such a type of functions should not include the functions, which exclusively belong to municipalities and the discharging of which may not be bound by any decisions of state authority institutions or their officials.

Only this interpretation of the name “assigned (independent-limited)” of a type of municipal functions, established in Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000), excludes deviations from the constitutional concept of local self-government. The name “assigned (independent-limited)” of a type of municipal functions, established in Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000), in itself is not in conflict with Paragraph 2 of Article 120 of the Constitution.

8. It needs to be noted that the assigned (independent-limited) municipal functions, indicated in Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000), are enumerated in Article 7 of the Law on Local Self-Government (wordings of 12 October 2000 and 24 September 2002). The petitioner does not impugn the conformity of the said article with the Constitution.

9. The very nature of the right of self-government implies that municipalities must discharge their functions while taking account of the local conditions and circumstances, however, in all cases they must observe the Constitution and laws. The provision of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000), under which municipalities, while implementing this and other laws, and other legal acts adopted on the basis of the former, discharge assigned (independent-limited) functions, taking into consideration the local conditions and circumstances, does not deviate from the provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws.

10. It has been mentioned that if state functions are transferred to municipalities by law, also, if obligations for them are created by law or other legal act, the funds necessary for the implementation of these functions (obligations) must be provided for.

While deciding whether the legal regulation established in Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with the said constitutional imperatives, it needs to be noted that the said law does not regulate the financing of assigned (independent-limited) municipal functions: the said law does not establish as to what kind of funds must be employed for financing the discharging of the assigned (independent-limited) municipal functions.

Thus, in itself the impugned legal regulation does not create any preconditions that the functions will be established for municipalities (their institutions), which they would not be able to fulfil, and/or that the law on the State budget of a respective year would not provide separately for the funds for the discharging of the functions transferred to municipalities. Thus, in itself the impugned legal regulation does not violate the provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws.

11. Taking account of the arguments set forth, it should be concluded that Item 2 of Paragraph 1 of Article 5 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 120 of the Constitution.

V

On the compliance of Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

1. Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) provides: “For the term of its powers, the municipal council shall form a board from among the members of the municipal council and establish the number of members of the board”.

2. The petitioner requests an investigation into whether Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

3. Paragraph 2 of Article 5 of the Constitution provides: “The scope of power shall be limited by the Constitution”.

Paragraph 1 of Article 119 of the Constitution provides: “The right of self-government shall be guaranteed to the administrative units of State territory which are provided for by law. It shall be implemented through corresponding municipal councils."

Paragraph 4 of Article 119 of the Constitution provides: “For the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it."

4. While deciding whether Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the fact is of crucial importance that the legislature, while defining municipal institutions, defines the municipal board as a municipal executive institution (Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000)), but not as an inner structural unit (division) of the municipal council, which must guarantee the work of the municipal council.

4.1. Upon the establishment in Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000), that the municipal council forms, for the term of its powers, the board and establishes the number of its members, the provisions of the constitutional concept of local self-government are realised, namely, that executive bodies accountable to municipal councils must be formed for the term of powers of the municipal council, also, that the legislature enjoys the discretion to establish, by law, the structure and the number of members of collegial executive bodies or leave, by law, to municipal councils to do so.

The said legal regulation established in Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) does not violate the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution, the provisions of Paragraph 1 of Article 119 of the Constitution that the right of self-government shall be guaranteed to the administrative units of State territory which are provided for by law and that this right shall be implemented through corresponding municipal councils, and the provision of Paragraph 4 of Article 119 of the Constitution that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.

4.2. The provision of Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) that the municipal board is formed from among the members of the municipal council, should be given a different evaluation.

4.2.1. It has been held in this ruling of the Constitutional Court that, according to the Constitution, the executive bodies accountable to municipal councils may not be formed from among members of the municipal councils which establish them.

The fact that, under Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000), the municipal council forms a board from among its members means that the constitutional principle of accountability of the executive bodies, which are formed by the municipal councils, to the municipal councils and that of supremacy of the municipal councils over the executive bodies accountable to them, are disregarded. Thus, the essential difference entrenched in the Constitution between the municipal councils as representative institutions through which the right of self-government is implemented, and executive bodies, which are formed by the councils and accountable to them, is erased. Thus, the provision of Paragraph 1 of Article 119 of the Constitution that the right of self-government shall be guaranteed to the administrative units of state territory, which are provided for by law, and the provision of Paragraph 4 of Article 119 of the Constitution that the municipal council shall establish executive bodies accountable to it, are violated.

Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) that the municipal council forms a board from among the members of the municipal council violates Paragraphs 1 and 4 of Article 119 of the Constitution.

4.2.2. The competence of municipal boards, as institutions of municipal power and public administration, is not established by Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000). Therefore, there are no grounds to state that the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution is violated; it should be concluded that Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 of the Constitution.

5. Taking account of the arguments set forth, it should be concluded that Paragraph 1 of Article 18 of the Law on Local Self-Government (wording of 12 October 2000) to the extent that it provides that the municipal board is formed from among the members of the municipal council is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

VI

On the compliance of Items 2, 3, 4, 8 and 15 of Paragraph 1 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

1. Paragraph 1 entitled “Powers of the Board” of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) provides:

The Board: <...>

2) shall adopt decisions on the analysis of the development of the territory of the municipality, preparation of drafts of general long-term social, cultural, economic, investment, demographic, crime control and prevention, ecological, health and other programmes;

3) shall adopt decisions on the distribution of targeted funds for state social and economic programmes and distribution of other state funds to municipal institutions financed from the budget;

4) shall, in compliance with laws and government resolutions, adopt decisions on the rate of rent payment for municipal residential premises; <...>

8) shall adopt decisions compulsory to the residents concerning sanitation, public health and environmental protection issues and publish them in the press; <...>

15) on the proposal of the mayor and taking into consideration the list approved by law, shall resolve the issue of the establishment of offices of public servants of political (personal) confidence, establish their number; <...>“.

2. The petitioner requests an investigation into whether Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of Article 119 of the Constitution.

3. While deciding whether Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the fact is of crucial importance that the municipal board, according to Paragraph 3 of Article 3 of the said law, is a municipal executive institution, i.e. an executive body accountable to the municipal council provided for by Paragraph 4 of Article 119 of the Constitution.

4. It has been mentioned that the functions and competence of executive bodies accountable to the municipal councils are provided by the Constitution only in general manner: under Paragraph 4 of Article 119 of the Constitution, executive bodies accountable to the municipal councils are formed for the direct implementation of laws, decisions of the Government and the municipal council. It has been held in this ruling of the Constitutional Court that it is left for the Seimas to establish, by law, the competence of the executive bodies accountable to the municipal councils. While establishing, by law, the competence of the executive bodies accountable to the municipal councils, the following provisions of the constitutional concept of local self-government must necessarily be observed: the municipal council is a representative institution of the municipality; it is superior to the executive bodies formed by it and accountable to it; the executive bodies are formed for realisation of the interests of the municipality, direct implementation of laws, decisions of the Government and the municipal councils; the municipal councils have powers to control the executive bodies formed by and accountable to them.

It has also been held in this ruling of the Constitutional Court that, under the Constitution, it is not permitted to establish any such legal regulation whereby the decision on the issues categorised expressis verbis by the Constitution as belonging to the municipality would by adopted not by municipal councils but by the executive bodies established by and accountable to them, i.e. the legal regulation, which might create legal preconditions for the executive bodies accountable to the municipal councils to interfere with the exclusive constitutional competence of the municipal councils to adopt decisions on self-government issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution.

It has also been held that, under to the Constitution, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils.

5. Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000), impugned by the petitioner, indicate certain issues on which municipal councils may adopt decisions. These items establish respective powers of the municipal board for the direct implementation of laws, decisions of the Government and the municipal councils; the municipal councils have powers to control the municipal board.

6. If the powers of the municipal board, established in Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000), are interpreted as established for the direct implementation of laws, decisions of the Government and the municipal councils, and while taking account of the powers of the municipal councils to control the municipal board, it should be concluded that the above-mentioned items are not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

7. Having held that Items 2, 3, 4, 8 and 15 of Article 19 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution, it should be held that they are not in conflict with Paragraph 2 of Article 5 of the Constitution, either.

VII

On the compliance of Items 5, 7, 9, 12, 15, 16, 17 and 18 of Paragraph 1 of Article 21 (wording of 12 October 2000), Item 6 of the same paragraph (wordings of 12 October and 25 September 2001), and Item 14 of the same paragraph (wordings of 12 October 2000 and 8 November 2001) with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

1. Paragraph 1 entitled “Powers of the Mayor, the Deputy Mayor” of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) provides, inter alia, the following:

<...> The Mayor: <...>

5) shall, while taking into consideration the recommendation of the municipal administrator, approve the regulations of subdivisions of the municipal administration, list of subdivision staff, without exceeding the funds appropriated for salaries and the number of employees of the municipal administration, fixed by the board;

6) shall administer municipal grants-in-aid or shall empower the municipal administrator to do so;

7) shall, through the municipal administrator, head structural and structural territorial subdivisions of the municipal administration; <...>

9) together with appropriate State institutions and establishments, shall prepare and implement preventive measures and rescue residents in the events of catastrophes, natural disasters, epidemics, contagious diseases, liquidate their results, take care of the implementation of crime control and prevention programmes, as well as of the environmental conditions in the municipal territory; <...>

12) shall organise the research and analysis of migration processes, together with territorial jobcentres shall take care of residents’ employment, improvement of their qualifications and re-qualification, as well as organisation of public works;<...>

14) shall, under the procedure provided for in laws, issue briefs of building design conditions, organise coordination of buildings’ projects and issue permits to construct, reconstruct, repair or demolish buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so;

15) shall organise primary personal and public health care, attendance and care of sick persons, invalids and elderly people, issue recommendations to institutions of primary health care concerning pharmaceutical activities;

16) shall set up and approve commissions for calling up recruits and medical expert examination of draftees;

17) shall organise general education of children, youth and adults, pre-school education of children, supplementary training of children and youth;

18) shall organise the provision of social services and other social support, be responsible for social integration of the disabled (invalids, persons with total disability)<...>“.

Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 25 September 2001) provides, that the mayor “shall administer municipal grants-in-aid, organise the execution of the municipal budget and shall be responsible for the municipal economic and financial activity, or shall empower the municipal administrator to perform everything listed above.”

Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 8 November 2001) provides, that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, construction permits and shall supervise the use of buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”.

2. The petitioner requests an investigation into whether Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

It has been held in this ruling of the Constitutional Court that the provisions of Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), impugned by the petitioner, that the mayor “shall administer municipal grants-in-aid or shall empower the municipal administrator to do so”, remained in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 25 September 2001), also the provisions of Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), impugned by the petitioner, that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, organise coordination of buildings’ projects and issue permits to construct, reconstruct, repair or demolish buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”, virtually remained in Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 8 November 2001), though with certain formulations changed.

3. While deciding whether Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the circumstance is of crucial importance that, under Paragraph 3 of Article 3 of the said law, the mayor is a municipal executive institution, i.e. an executive body accountable to the municipal council provided for by Paragraph 4 of Article 119 of the Constitution.

4. It has been mentioned that the functions and competence of executive bodies accountable to the municipal councils are established by the Constitution only in a general manner: under Paragraph 4 of Article 119 of the Constitution, executive bodies accountable to the municipal councils are established for the direct implementation of the laws, the decisions of the Government and the municipal councils. It has been held in this ruling of the Constitutional Court that it is left for the Seimas to establish, by law, the competence of executive bodies accountable to the municipal councils. While establishing, by law, the competence of executive bodies accountable to the municipal councils, the following provisions of the constitutional concept of local self-government must be paid heed to: the municipal council is a municipal representative institution; it is superior to the executive bodies formed by it and accountable to it; the executive bodies are formed for the realisation of the interests of the municipality, direct implementation of laws, decisions of the Government and the municipal councils; the municipal councils have powers to control executive bodies formed by them and accountable to them.

It has also been held in this ruling of the Constitutional Court that, under the Constitution, it is not permitted to establish any such legal regulation whereby the decision on the issues categorised expressis verbis by the Constitution as belonging to the municipality would by adopted not by municipal councils but by the executive bodies established by and accountable to them, i.e. the legal regulation, which might create legal preconditions for the executive bodies accountable to the municipal councils to interfere with the exclusive constitutional competence of the municipal councils to adopt decisions on self-government issues indicated in Paragraph 1 of Article 40, Paragraph 2 of Article 41, Paragraph 2 of Article 47, Paragraph 4 of Article 119, Paragraphs 1 and 2 of Article 121 and Article 122 of the Constitution.

It has also been held that, under to the Constitution, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of corresponding municipal councils.

5. Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), which are impugned by the petitioner, indicate certain issues on which the mayor of the municipality may take decisions. These items provide for respective powers of the mayor of a municipality for the direct implementation of the laws, the decisions of the Government and the municipal councils; municipal councils have the powers to control the mayor of the municipality.

6. While interpreting the powers of the mayor of the municipality established in Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) as such which have been provided for the direct implementation of the laws, the decisions of the Government and the municipal councils, and taking account of the powers of the municipal councils to control the mayor of a municipality, it should be concluded that the above-mentioned items are not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

7. Having held that Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution, it should be held that they are not in conflict with Paragraph 2 of Article 5 of the Constitution.

8. Having held that Items 5, 6, 7, 9, 12, 14, 15, 16, 17 and 18 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, and taking account of the fact that the provisions of Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), that the mayor “shall administer municipal grants-in-aid or shall empower the municipal administrator to do so” remained in Item 6 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 25 September 2001), which provides that the mayor “shall administer municipal grants-in-aid, organise the execution of the municipal budget and shall be responsible for the municipal economic and financial activity, or shall empower the municipal administrator to perform everything listed above”, also of the fact that the provisions of Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor “shall, under the procedure provided for in laws, issue briefs of building design conditions, organise coordination of buildings’ projects and issue permits to construct, reconstruct, repair or demolish buildings, or shall empower, under the established procedure, the municipal administrator or another servant of the municipal administration to do so”, even with some formulations changed, remained in Item 14 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 8 November 2001), which provides that the mayor “shall administer municipal grants-in-aid, organise the execution of the municipal budget and shall be responsible for the municipal economic and financial activity, or shall empower the municipal administrator to perform everything listed above”, it must also be held that Item 6 of Paragraph 1 (wording of 25 September 2001) and Item 14 of the said paragraph (wording 8 November 2001) of Article 21 of the Law on Local Self-Government are not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, either.

VIII

On the compliance of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of Article 119 of the Constitution

1. Item 1 of Paragraph 1 of Article 21 entitled “The Powers of the Mayor, the Deputy Mayor” of the Law on Local Self-Government (wording of 12 October 2000) provides, that the mayor “shall determine and draw up agendas for the municipal council and the municipal board sittings and submit draft decisions, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the municipal board and the minutes of the sittings that he has chaired”.

2. The petitioner requests an investigation into whether Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of Article 119 of the Constitution.

3. While deciding, whether Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) is not in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution, the circumstance is of crucial importance that, according to Paragraph 3 of Article 3 of the said law, the mayor of the municipality is a municipal executive institution, i.e. the executive body accountable to the municipal council, which is provided for Paragraph 4 of Article 119 of the Constitution.

4. Under Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000), the mayor shall determine and draw up agendas for the municipal council and the municipal board sittings and submit draft decisions, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the municipal board and the minutes of the sittings that he has chaired.

4.1. Upon the establishment in Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor shall determine and draw up agendas for the municipal board sittings and submit draft decisions of the board, sign decisions of the municipal board and the minutes of the sittings of the board that he has chaired, an interrelation of two municipal executive institutions, the municipal board and the mayor of the municipality, established by the Law on Local Self-Government has been consolidated: the mayor of the municipality is the head of the municipal board, a collegial executive institution. Such legal regulation does not deviate from the constitutional concept of local self-government, nor does it violate the provision of Paragraph 2 of Article 5 of the Constitution that the scope of powers shall be limited by the Constitution, the provisions of Paragraph 1 of Article 119 that the right of self-government shall be guaranteed to the administrative units of state territory which are provided for by law and that this right shall be implemented through corresponding municipal councils, and the provision of Paragraph 4 of the same article that for the direct implementation of the laws of the Republic of Lithuania, the decisions of the Government and the municipal council, the municipal council shall establish executive bodies accountable to it.

4.2. A different evaluation should be given to the provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired.

4.2.1. It has been held in this ruling of the Constitutional Court that the executive bodies accountable to municipal councils may not be formed from among members of the municipal councils which establish them. It has been mentioned that the mayor of the municipality is an executive body accountable to the municipal council. According to the Constitution, he may not be a member of the municipal council.

Paragraph 3 of Article 3 of the Law on Local Self-Government (wording of 12 October 2000) defines that the mayor of the municipality is a municipal executive institution; this is precisely the reason why, under the Constitution, he may not have the powers to determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired.

The above-mentioned provisions of Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) disregard the principles of local self-government established by the Constitution: representative democracy, accountability of the executive bodies to the representation, supremacy of the municipal councils over executive bodies accountable to them. Thus, the essential difference between the municipal councils, as representative institutions, through which the right to self-government is implemented, and executive bodies accountable to them, is erased. Therefore, the provision of Paragraph 1 of Article 119 of the Constitution that the right of self-government guaranteed to the administrative units of the state territory, which are provided for by law, is implemented through corresponding municipal councils, and the provision of Paragraph 4 of the same article that the municipal council shall establish executive bodies accountable to them, are violated.

4.2.2. It has been held in this ruling of the Constitutional Court that the Constitution provides for two types of municipal institutions: municipal councils (representative institutions) and the executive bodies accountable to them (executive institutions); these are institutions of municipal power and institutions of public administration.

Upon the establishment in Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired, the powers of the mayor of the municipality, as an executive institution of local power, are broadened without constitutional grounds. Thus, such legal regulation disregards the provisions of Paragraph 2 of Article 5 of the Constitution, according to which the scope of power shall be limited by the Constitution.

5. Taking account of the arguments set forth, it should be concluded that Item 1 of Paragraph 1 of Article 21 of the Law on Local Self-Government (wording of 12 October 2000) to the extent that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired, is in conflict with Paragraph 2 of Article 5, and Paragraphs 1 and 4 of Article 119 of the Constitution.

IX

On the official publication of the ruling of the Constitutional Court in this case.

1. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.

Under Article 84 of the Law on the Constitutional Court of the Republic of Lithuania, the rulings and conclusions of the Constitutional Court, as well as, if necessary, other decisions thereof, shall be officially published in: a separate chapter of the official gazette “Valstybės žinios” (The News of the State); a special publication of the Seimas; and newspapers through the Lithuanian News Agency (ELTA). If necessary, the Constitutional Court shall publish its collections of its rulings and decisions as well as other publications. Rulings of the Constitutional Court shall become effective on the day that they are published in one of the above-mentioned publications first.

Thus, under the Constitution and the Law on the Constitutional Court, the Constitutional Court has the powers, while taking account of the circumstances of a concrete case, to decide in which of the indicated publications its ruling must be officially published first and, in particular, when this must be done. Alongside, the Constitutional Court notes that the Constitutional Court’s rulings related to the protection of human rights and freedoms must, in all cases, be published without delay.

2. It has been held in this ruling of the Constitutional Court that Paragraph 1 of Article 18 (wording of 12 October 2000) of the Law on Local Self-Government to the extent that it provides that the municipal board is formed from among the members of the municipal council is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution, also, that Item 1 of Paragraph 1 of Article 21 (wording of 12 October 2000) of the Law on Local Self-Government to the extent that it provides that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired is in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

It needs to be noted that the said provisions of the Law on Local Self-Government (wording of 12 October 2000 with subsequent amendments) are systematically interrelated with many other provisions of the same law.

3. Due to the fact that, under the Constitution and the Law on the Constitutional Court, a law (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, it should be emphasised that, if this ruling of the Constitutional Court were officially published immediately after its public pronouncement at the Constitutional Court’s hearing, there would appear a vacuum in the legal regulation concerning local self-government, which would in essence disrupt the functioning of local self-government mechanism and state administration. In order to remove this vacuum in legal regulation, a certain period of time is necessary.

Taking account of this, this ruling of the Constitutional Court must be officially published in the official gazette Valstybės žinios upon the expiration of two months of its pronouncement at the public hearing of the Constitutional Court, i.e. on 25 February 2003.

Conforming to Articles 102 and 107 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56, 64 and 84 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 Paragraphs 3 and 4 of Article 3 (wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (wording of 14 January 2002), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (wording of 12 October 2000), Item 5 (wording of 12 October 2000), Item 6 (wordings of 12 October 2000 and 25 September 2001), Items 7, 9, 12 (wording of 12 October 2000), Item 14 (wordings of 12 October 2000 and 8 November 2001), Items 15, 16, 17, and 18 (wordings of 12 October 2000) of Paragraph 1 of Article 21 of the Republic of Lithuania’s Law on Local Self-Government, are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 1 of Article 18 (wording of 12 October 2000) of the Republic of Lithuania’s Law on Local Self-Government to the extent that it provides that the municipal board is formed from among the members of the municipal council is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

3. To recognise that Item 1 (wording of 12 October 2000) of Paragraph 1 of Article 21 of the Republic of Lithuania’s Law on Local Self-Government to the extent that it provides that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired, is in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

4. To recognise that the Republic of Lithuania’s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws, according to the procedure of its adoption, is in conflict with Paragraph 3 of Article 69 of the Constitution of the Republic of Lithuania.

5. To recognise that the Republic of Lithuania’s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution is in conflict with Paragraph 1 of Article 6, Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania, the principle of the supremacy of the Constitution, the principle of a state under the rule of law, which are entrenched in the Constitution of the Republic of Lithuania, while according to the procedure of its adoption it is in conflict with Paragraph 3 of Article 69 of the Constitution of the Republic of Lithuania.

6. This ruling of the Constitutional Court must be officially published in the official gazette “Valstybės žinios” on 25 February 2003.

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:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas