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On elections to the European Parliament

Case No. 26/2009

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF ARTICLE 36 (WORDINGS OF 8 MAY 2008 AND 12 FEBRUARY 2009) OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO THE EUROPEAN PARLIAMENT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

9 November 2010

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

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

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 28 October 2010 heard constitutional justice case No. 26/2009 subsequent to the petition (No. 1B-27/2009) of the Supreme Administrative Court of Lithuania requesting to investigate whether Paragraph 1 (wording of 8 May 2008) of Article 36 of the Republic of Lithuania Law on Elections to the European Parliament to the extent that it is established that candidates to Members of the European Parliament may be nominated exclusively by political parties registered pursuant to the Law on Political Parties and which meet the requirements of the Law on Political Parties regarding the number of party members is not in conflict with Paragraph 2 of Article 29, Paragraph 1 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the petitioner, was investigating an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament to the extent that it is established that candidates to Members of the European Parliament may be nominated exclusively by the political parties registered pursuant to the Law on Political Parties and which meet the requirements of the Law on Political Parties regarding the number of party members is not in conflict with Paragraph 2 of Article 29, Paragraph 1 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution.

II

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

1. Participation in the activity of a political party implies recognition of a certain political ideology, convictions or views, therefore, Paragraph 1 of Article 36 of the Law on Elections to the European Parliament impermissibly limits the right of a citizen, who is willing to make use of his electoral right, to have his own convictions and views that do not coincide with views of political parties. Thus, in the opinion of the petitioner, such legal regulation whereby candidates to Members of the European Parliament may be nominated exclusively by the political parties is in conflict with Paragraph 2 of Article 29 of the Constitution.

The election procedure limiting the possibility of persons or their groups (forming a combined list) to nominate candidacies violates the passive electoral right, i.e. the right to be elected. Such a limitation of the passive electoral right violates not only the rights of citizens of the Republic of Lithuania, but also of citizens of other Member States of the European Union who permanently reside in Lithuania. Citizens of foreign states do not have the right to be members of Lithuanian political parties, therefore, the possibilities of citizens of other Member States of the European Union to be candidates in elections to the European Parliament are limited more than the possibilities of citizens of the Republic of Lithuania.

2. Paragraph 1 of Article 36 of the Law on Elections to the European Parliament, wherein it is established that exclusively the political parties have the right to nominate candidates to Members of the European Parliament means that all those citizens who are not members of the political parties and who have not tied themselves to those parties by close relationships do not have the right to nominate their candidates in the multi-member constituency of elections to the European Parliament. Thus, such legal regulation violates the principles of equality and universality of elections entrenched in Paragraph 1 of Article 34 of the Constitution.

3. In the opinion of the petitioner, under the Constitution, such a system of elections of Members of the European Parliament, where the citizens who are not included in the lists of candidates of political parties or are nominated not by those parties, are not secured an opportunity to participate in the election to the European Parliament, is impermissible.

According to the petitioner, the legal regulation whereby only the political parties may nominate candidates to Members of the European Parliament forces the citizens to become tied, either formally or informally, with the political parties. Therefore, the petitioner had doubts whether the provision of the Law on Elections to the European Parliament that only the political parties have the right to propose (nominate) candidates to Members of the European Parliament is in compliance with the provision of Paragraph 2 of Article 35 of the Constitution.

While challenging the compliance of the legal regulation (to the specified extent) entrenched in Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament with the Constitution, the petitioner refers to the provisions of the official constitutional doctrine formulated in the Constitutional Court rulings of 9 February 2007 and 1 October 2008.

4. According to the petitioner, the restriction (established in Paragraph 1 of Article 36 of the Law on Elections to the European Parliament) to the persons who are not members of political parties and who seek to become candidates to the European Parliament independently from political parties, might violate the international obligations assumed by the Republic of Lithuania to secure the rights recognised in international documents, namely, the right to be elected on the basis of universal and equal suffrage regardless of one’s political convictions. Alongside, the disputed provision of the Law on Elections to the European Parliament might be in conflict with the principle of following the undertaken international obligations, which is entrenched in Paragraph 1 of Article 135 of the Constitution, and with the obligation to observe the universally recognised principles and norms of international law.

III

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, who was V. Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities, wherein it is maintained that Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament is not in conflict with Paragraph 1 of Article 29, Paragraph 1 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

1. Paragraph 2 of Article 1 of the Law on Elections to the European Parliament provides that the purpose of this law shall be to ensure the application of the legal acts of the European Union, specified in the annex to this law. The legal acts of the European Union have entrenched the principles (common to all Member States) of elections to the European Parliament, inter alia the fact that in all Member States Members of the European Parliament must be elected according to the system of proportional representation by voting for lists of candidates; at their discretion, the Member States can establish either one or several constituencies provided this does not violate the system of proportional representation.

2. It is impossible to discern the conflict of the disputed norm with Paragraph 2 of Article 29 of the Constitution. In Paragraph 1 of Article 36 of the Law on Elections to the European Parliament the legislator has established the requirements for the political parties which they must meet so that they might be able to nominate candidates in the elections, but not restrictions to the persons who are candidates to the European Parliament to make use of their electoral right due to their political ideology, convictions or views.

The Law on Elections to the European Parliament imperatively prescribes that direct or indirect abridgements of suffrage of the citizens of the Republic of Lithuania or the European Union on the grounds of their origin, political convictions, social or property status, nationality, sex, education, language, religion, or the type or character of their occupation shall be prohibited. In addition, in the Member States of the European Union and in other democratic states, in the course of the regulation of electoral relations, also special requirements (avoiding double-candidacy, payment of a certain election deposit, presentation of a report concerning the sources of funds for previous political campaigning, etc.) are often established. As a rule, in such cases no questions arise as regards violation or limitation of the electoral right of citizens. In the doctrine of constitutional law similar requirements are attributed to the conditions of implementation of the passive electoral right and they are widely applied.

3. Paragraph 1 of Article 34 of the Constitution defines the subjective electoral right of citizens—the right to elect (the active electoral right). The active electoral right means that the person must be included in the list of voters, he is issued a ballot paper. The law ensures a possibility to vote, in the entire territory of the state and beyond its borders, for all citizens under equal conditions by direct and secret voting provided they have not been recognised incapable by a court. In addition, the right of election to the European Parliament is enjoyed by citizens of other Member States of the European Union, who permanently reside in Lithuania and who, on the day of elections, are 18 years of age. Each voter has one vote for voting for a list of candidates or a candidate and this vote is equal to the vote of every other voter. Paragraph 1 of Article 36 of the Law on Elections to the European Parliament does not deny the subjective active right of citizens, which is entrenched in Paragraph 1 of Article 34 of the Constitution, to elect Members of the European Parliament.

4. According to the representative of the party concerned, neither the provision “candidates may be nominated by a party” of Paragraph 1 of Article 36 of the Law on Elections to the European Parliament, nor the other articles of the same law regulating the procedure for nomination candidates to Members of the European Parliament require that political parties nominate only their members as candidates to the European Parliament. While taking account of this, in itself, such legal regulation established in the Law on Elections to the European Parliament, where also those who are not members of political parties compete in the lists of parties for mandates of Members of the European Parliament may not be assessed as deviating from the constitutional concept of elections and as violating the imperative stemming from Paragraph 2 of Article 35 of the Constitution that no one may be compelled to belong to any political party.

5. In the opinion of the representative of the party concerned, the disputed legal regulation does not violate the principles of a state under the rule of law and protection of legitimate expectations, which are entrenched in the Constitution, or the principles of fair elections recognised by international law, and, thus, the principle of following the undertaken international obligations entrenched in Paragraph 1 of Article 135 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Deividas Kriaučiūnas, Director General of the European Law Department under the Ministry of Justice of the Republic of Lithuania.

V

At the Constitutional Court hearing, V. Kurpuvesas, the representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in the written explanations and answered to questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

1. On 20 November 2003, the Seimas adopted the Republic of Lithuania Law on Elections to the European Parliament which came into force on 10 December 2003.

Paragraph 1 of Article 1 of the Law on Elections to the European Parliament inter alia provides that this law shall establish the procedure for organising and holding elections when electing Members of the European Parliament to the seats in the European Parliament allocated for the Republic of Lithuania.

2. Article 36 “Nomination of Candidates” (wording of 20 November 2003) of the Law on Elections to the European Parliament prescribed:

1. Candidates may be nominated by a party registered pursuant to the Law on Political Parties and Political Organisations no later than 65 days prior to the elections.

2. A party shall nominate their candidates by presenting a list of candidates in which candidates are recorded in the succession established by the party. Unless the statutes of a party provide otherwise, the list of the candidates, recorded in succession, must be approved at the congress or conference of the party. The list of candidates (joint list) must not include less than 5 and more than 26 candidates.”

3. On 8 May 2008, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 3, 6, 8, 15, 17, 21, 22, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 46, 47, 48, 49, 50, 54, 57, 59, 65, 66, 67, 68, 69, 70, 71, 72, 76, 77, 80, 86, 88, 94 of the Law on Elections to the European Parliament and Supplementing the Law with Articles 41, 651, which came into force on 24 May 2008. By means of Article 16 of this law inter alia Paragraph 1 (wording of 20 November 2003) of Article 36 of the Law on Elections to the European Parliament was amended. Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament was set forth as follows:

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

2. A party shall nominate their candidates by presenting a list of candidates in which candidates are recorded in the succession established by the party. Unless the statutes of a party provide otherwise, the list of the candidates, recorded in succession, must be approved at the congress or conference of the party. The list of candidates (joint list) must not include less than 5 and more than 26 candidates.”

If the legal regulation established in Paragraph 1 (wording of 20 November 2003) of Article 36 of the Law on Elections to the European Parliament is compared with the legal regulation established in Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament, it is clear that Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament, in which requirements to the parties which may nominate candidates to Members of the European Parliament are established, consolidated an additional requirement that the number of party members must conform to the requirements of the Law on Political Parties.

4. Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament has not been amended and/or supplemented.

5. The legal regulation entrenched in Paragraph 1 of Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, whereby a political party may nominate candidates to Members of the European Parliament, is inseparably related with Paragraph 2 of the same article, inter alia its provision that a political party nominates candidates by presenting a list of candidates.

While construing the legal regulation entrenched in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, in the context of the constitutional justice case at issue it needs to be noted that persons may be candidates in elections to the European Parliament if their candidacies are nominated only by political parties that have enlisted them in the list of candidates.

6. The legal regulation entrenched Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament is to be construed also in the context of the legal regulation established in other articles (paragraphs thereof) of the same law.

6.1. In Paragraph 3 (wording of 20 November 2003) of Article 1 of the Law on Elections to the European Parliament it was inter alia established that Members of the European Parliament shall be elected for a term of five years in one multi-member constituency, comprising the whole territory of the state, on the basis of proportional electoral system, by preferential voting.

Under Article 10 of the Law on Elections to the European Parliament, for the organisation and conduct of elections, one multi-member constituency shall be established in the Republic of Lithuania, in which all the voters shall cast their votes and all the Lithuanian members of the European Parliament shall be elected.

6.2. Article 3 “Universal Suffrage” (wording of 8 May 2008) of the Law on Elections to the European Parliament prescribed:

1. Citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, who, on the day of elections, are 18 years of age shall have the right to vote in elections to the European Parliament. Persons who are recognised incapable by court shall not participate in elections.

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4. A citizen of the Republic of Lithuania or any other citizen of the Member State of the European Union, permanently residing in Lithuania, who is at least 21 years of age on the day of elections, and who does not stand as a candidate in elections to the European Parliament in any other Member State of the European Union, may be elected in the Republic of Lithuania as a Member of the European Parliament <...>.”

6.3. Thus, while construing the legal regulation established in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament in the context of the legal regulation established in the other articles (paragraphs thereof) of this law, one is to hold that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, who permanently reside in Lithuania, may be elected as Members of the European Parliament on the basis of proportional electoral system provided their candidacies are nominated by the political parties that enlisted them into the lists of candidates. It needs to be noted that a possibility to present the lists of candidates for other subjects, save political parties, was provided neither in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament nor in other articles (paragraphs thereof) of this law. Thus, such legal regulation entrenched an exclusive right of political parties to present lists of candidates in the elections to the European Parliament.

7. On 12 February 2009, the Seimas adopted the Republic of Lithuania Law on Amending Articles 1 and 36 of the Law on Elections to the European Parliament by which inter alia Paragraph 2 (wording of 20 November 2003) of Article 36 of the Law on Elections to the European Parliament was amended. After this amendment, Article 36 (wording of 12 February 2009) of the Law on Elections to the European Parliament was set forth as follows:

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

2. A party shall nominate their candidates by presenting a list of candidates in which candidates are recorded in the succession established by the party. Unless the statutes of a party provide otherwise, the list of the candidates, recorded in succession, must be approved at the congress or conference of the party. The list of candidates (joint list) must not include less than 5 candidates. The number of candidates in the list of candidates (joint list) may not exceed more than twice the number of members of the European Parliament, elected in the Republic of Lithuania.”

It needs to be noted that after the Seimas had adopted, on 12 February 2009, this Law on Amending Articles 1 and 36 of the Law on Elections to the European Parliament, the provision of Paragraph 2 (wording of 20 November 2003) of Article 36 of the Law on Elections to the European Parliament regarding the number of candidates in the list (joint list) was amended, but the provision of Paragraph 2 (wording of 20 November 2003) of the same law that a party shall nominate their candidates by presenting a list of candidates was not amended.

Consequently, the legal regulation established in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, whereby citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, who permanently reside in Lithuania, may be elected as Members of the European Parliament provided their candidacies are nominated by the political parties that enlisted them into the lists of candidates, remained unchanged. The exclusive right (which was entrenched in the Law on Elections to the European Parliament) of political parties to present lists of candidates in the elections to the European Parliament remained as well.

Thus, under Article 36 (wording of 12 February 2009) of the Law on Elections to the European Parliament, citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union who permanently reside in Lithuania may be elected as Members of the European Parliament on the basis of proportional electoral system provided their candidacies are nominated by the political parties, which have the exclusive right to present lists of candidates, and which enlisted them into the lists of candidates.

8. On 18 May 2010, the Seimas adopted the Republic of Lithuania Law on Amending Articles 37, 38, 40, 44, 45, 47, 48, 49, 50 and 51 of the Law on Elections to the European Parliament. This law came into force on 15 September 2010.

Upon the amendment of the indicated articles of the Law on Elections to the European Parliament, the exclusive right of political parties to present lists of candidates in the elections to the European Parliament, which was entrenched in this law, remained entrenched.

9. It needs to be mentioned that, under Paragraph 1 of Article 5 of the Republic of Lithuania Law on Political Parties (wording of 23 March 2004), the citizens of the Republic of Lithuania aged 18 and over may be founders and members of a political party. Thus, under this legal regulation, citizens of other states, inter alia citizens of other Member States of European Union, cannot found a political party and be members of a political party in Lithuania.

II

1. It has been mentioned that the Supreme Administrative Court of Lithuania, the petitioner, requests that the Constitutional Court investigate into whether Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament to the extent that it is established that candidates to Members of the European Parliament may be nominated exclusively by the political parties registered pursuant to the Law on Political Parties and which meet the requirements of the Law on Political Parties regarding the number of party members is not in conflict with Paragraph 2 of Article 29, Paragraph 1 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution.

2. It has also been mentioned that the legal regulation entrenched in Paragraph 1 of Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, whereby a political party may nominate candidates to Members of the European Parliament, is inseparably related with Paragraph 2 of the same article, inter alia with its provision that a political party nominates candidates by presenting a list of candidates.

It needs to be noted that the petitioner, while disputing the legal regulation (in the aspect pointed out by it) which is entrenched in Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament, maintains that, under the Constitution, such a system of elections of Members of the European Parliament, where the citizens who are not included in the lists of candidates of political parties or nominated not by those parties are not secured an opportunity to participate in the election to the European Parliament, is impermissible.

As mentioned, such legal regulation, whereby only a political party may nominate candidates in elections to the European Parliament by presenting a list of candidates, is entrenched both in Paragraph 1 and in Paragraph 2 of Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, thus, it is possible to investigate the compliance of the legal regulation, whereby only a political party may nominate candidates to Members of the European Parliament by presenting a list of candidates, with the Constitution only by investigating, alongside, the compliance of Paragraphs 1 and 2 of Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament with the Constitution.

3. Thus, while construing the legal regulation established in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament in the aspect disputed by the petitioner and in the context of the legal regulation established in the other articles (paragraphs thereof) of this law, it has been held in this ruling that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, who permanently reside in Lithuania, may be elected as Members of the European Parliament on the basis of proportional electoral system provided their candidacies are nominated by the political parties which have the exclusive right to present lists of candidates, and which enlisted them into the lists of candidates.

Thus, the petition of the Supreme Administrative Court of Lithuania, the petitioner, to investigate whether Paragraph 1 (wording of 8 May 2008) of Article 36 of the Law on Elections to the European Parliament to the extent that it is established that candidates to Members of the European Parliament may be nominated exclusively by the political parties registered pursuant to the Law on Political Parties and which meet the requirements of the Law on Political Parties regarding the number of party members is not in conflict with the Constitution is to be treated as the petition requesting to investigate whether Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, is not in conflict with the Constitution.

4. It needs to be noted that the petitioner doubts as regards the compliance (to the specified extent) of the legal regulation entrenched in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament with inter alia Paragraph 1 of Article 34 of the Constitution in which it is established that citizens who, on the day of election, have reached 18 years of age, shall have the electoral right, however, from the entirety of the arguments of the petitioner it is clear that it doubts as regards the compliance of the disputed norm not with Paragraph 1 of Article 34 of the Constitution, but with Paragraph 2 of the said article, in which it is established that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws.

5. Thus, in the constitutional justice case at issue the Constitutional Court will investigate whether Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was not in conflict with Paragraph 2 of Article 29, Paragraph 2 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution.

III

1. On 1 May 2004, the Republic of Lithuania became a Member State of the European Union. On 13 July 2004, the Seimas adopted the Law on Supplementing the Constitution of the Republic of Lithuania with the Constitutional Act “On Membership of the Republic of Lithuania in the European Union” and Supplementing Article 150 of the Constitution of the Republic of Lithuania, by Article 1 whereof it supplemented the Constitution with the Constitutional Act of the Republic of Lithuania “On Membership of the Republic of Lithuania in the European Union”, which is a constituent part of the Constitution (Article 150 of the Constitution). This Constitutional Act came into force on 14 August 2004. Thereby the membership of the Republic of Lithuania in the European Union was constitutionally confirmed (Constitutional Court rulings of 13 December 2004 and 14 March 2006).

2. Pursuant to Paragraph 2 of the Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, the norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.

3. Under the Treaty on the European Union, the European Parliament is an institution of the European Union, and jointly with the Council exercises inter alia legislative and budgetary functions (Paragraph 1 of Article 13, Paragraph 1 of Article 14). The Members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot (Paragraph 3 of Article 14).

Thus, the European Parliament represents citizens of the European Union and is to be regarded as a representative political institution.

4. In the context of the constitutional justice case at issue it needs to be noted that the Law on Elections to the European Parliament was adopted by seeking to implement inter alia the legal acts of the European Union related to elections of the European Parliament. These legal acts are listed in the Annex “Implemented Legal Acts of the European Union” to the Law on Elections to the European Parliament. By this law inter alia the following legal acts of the European Union were implemented:

Council Decision No. 76/787/ECSC, EEC, Euratom of 20 September 1976;

Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals;

2002/772/EC, Euratom: Council Decision of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom.

According to Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, any person who, on the reference date, is a citizen of the European Union and is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals, shall have the right inter alia to stand as a candidate in elections to the European Parliament in the Member State of residence (Article 3).

Paragraph 1 of Article 1 of the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, amended by 2002/772/EC, Euratom: Council Decision of 25 June 2002 and 23 September 2002, contains the provision that elections to the European Parliament are conducted on the basis of proportional representation.

5. To sum it up, it needs to be held that in the acts of the European Union law, which are related to elections to the European Parliament, it is inter alia entrenched that any person who, on the reference date, is a citizen of the European Union and is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals, may elect Members of the European Parliament and be elected a Member of the European Parliament. In addition, a provision is entrenched that elections to the European Parliament are conducted on the basis of proportional representation.

IV

1. In the constitutional justice case at issue the Constitutional Court will investigate whether Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was not in conflict with Paragraph 2 of Article 29, Paragraph 2 of Article 34, Paragraph 2 of Article 35, Paragraph 1 of Article 135 of the Constitution.

2. Paragraph 2 of Article 29 of the Constitution provides that the rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.

The principle of equality of persons entrenched in Article 29 of the Constitution is to be construed inseparably from other provisions of the Constitution, inter alia from the provisions entrenching the rights and freedoms of the person, as well as from the constitutional principle of a state under the rule of law which, as it was held by the Constitutional Court in its rulings more than once, is a universal principle upon which the entire legal system of Lithuania and the Constitution itself are based.

It needs to be noted that the constitutional principle of a state under the rule of law implies various requirements for the legislator and other law-making entities: the law-making entities may pass legal acts only without exceeding their powers; when legally regulating public relations it is compulsory to pay heed to the requirements of natural justice comprising inter alia the necessity to ensure the equality of persons before the law, the court and state institutions and officials, etc. (Constitutional Court rulings of 13 December 2004, 16 January 2006 and 22 March 2010).

3. The Constitutional Court has held more than once in its acts that the principle of a state under the rule of law entrenched in the Constitution implies continuity of jurisprudence (Constitutional Court rulings of 28 March 2006, 9 May 2006, and 22 October 2007, decisions of 8 August 2006, and 21 November 2006).

4. In this context it needs to be noted that the official constitutional doctrine of electoral right has been formulated and developed in various acts of the Constitutional Court, which were adopted in previous constitutional justice cases, inter alia in the Constitutional Court conclusions of 26 November 1996 and 5 November 2004 regarding inquiries of the President of the Republic of Lithuania whether the laws on elections to the Seimas had not been violated, in the ruling of 9 February 2007—in the aspect of elections to municipal councils, and in the ruling of 1 October 2008—in the aspect of elections to the Seimas.

5. In its ruling of 1 October 2008, the Constitutional Court noted that the provision of Paragraph 2 of Article 34 of the Constitution that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws enshrines the so-called passive electoral right, i.e. the opportunity for a person to nominate himself for the members of the corresponding elected institution of public power under the procedure established by the Constitution and election laws, therefore the opportunity to seek to be elected.

6. The Constitutional Court, while construing the principles of elections to the Seimas, emphasised the importance of elections of the represented institutions and held that in a constitutional democracy, special requirements are raised to the formation of representative political institutions. These institutions may not be formed in a way so that there might arise doubts as to their legitimacy and legality, inter alia, as to the fact whether the principles of a democratic state under the rule of law were not violated in the course of election of persons to representative political institutions. Elections may not be regarded as democratic, nor their results as legitimate and legal, if the elections are held by trampling on the principles of democratic elections established in the Constitution, and by violating democratic electoral procedures (Constitutional Court conclusion of 5 November 2004, ruling of 1 October 2008).

In the context of the constitutional justice case at issue it needs to be noted that the European Parliament is not the representation of the Nation, however, as mentioned, it is to be regarded as a representative political institution of the European Union, whose election procedure in the concrete Member State of the European Union is established by the legislator of the corresponding Member State.

Thus, the provision of Paragraph 2 of Article 34 of the Constitution that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws inter alia means that the legislator, while regulating, by means of laws, the implementation of the passive electoral right in electing representative political institutions, inter alia the European Parliament, has the constitutional duty to heed the imperatives, inter alia the principles of electoral law, which arise from the Constitution.

7. In the Constitution the universally recognised democratic principles of election to representative political institutions are entrenched, as, for instance: elections must be conducted on the basis of universal, equal, and direct suffrage, the ballot must be secret; under the Constitution, only such elections are allowed where there is free and fair competition for the mandate, where the voters have the right and a real opportunity to choose from several candidates, where at the time of voting they can express their will freely and without being subjected to control. The requirements of transparency and publicity must be applied to the formation of a representative political institution.

8. In its ruling of 9 February 2007, the Constitutional Court held that the electoral right is closely related inter alia to the right of citizens to freely form political parties, provided that the aims and activity thereof are not contrary to the Constitution and laws, as entrenched in Article 35 of the Constitution. In the same ruling it was also held that the content of the constitutional right to freely form political parties is composed of the right to form political parties, the right to join them and take part in their activities, as well as the right not to be a member of political parties, and the right to leave them; an individual of his own free will either implements or does not implement his constitutional right of whether to belong to a political party or not; this free will of an individual is a fundamental principle of membership in political parties.

The provision of Paragraph 2 of Article 35 of the Constitution that no one may be compelled to belong to any society, political party, or association is a constitutional guarantee that protects a person from belonging to any association against his will. The said constitutional guarantee that protects a person from belonging to any political party against his will means also that the person may not be directly or indirectly compelled to become related to any political party by any relations that are other than formal membership (Constitutional Court ruling of 9 February 2007).

Political parties belong to the kind of associations, the aim and purpose of establishment and activity of which are inseparable from pursuit of political power (Constitutional Court decision of 10 February 2005). Political parties conduct this pursuit inter alia by participating in elections to representative political institutions.

Therefore, under the Constitution, no such legal regulation is allowed which could prevent from participation of political parties or the candidates either nominated or supported by political parties in elections to representative political institutions. However, this requirement cannot be construed as entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions.

9. It has been mentioned that Paragraph 2 of Article 34 of the Constitution prescribes that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws.

9.1. In democratic states there exist various systems of elections to representative political institutions; the proportional electoral system and the majoritarian electoral system are most widely spread ones.

It is generally recognised that in the proportional electoral system one or several multi-member constituencies are formed in which candidates enlisted in the lists of candidates drawn up by political parties (or other collective subjects) take part; in the majoritarian electoral system individual candidates stand as candidates in single-member constituencies, who are nominated not only by political parties, but also by individual persons, who have nominated themselves under procedure established in laws.

In democratic states there exists also so-called mixed electoral system which includes both the proportional and majoritarian electoral systems.

Neither the proportional electoral system, nor the majoritarian electoral system, nor the electoral system where certain elements of proportional and majoritarian systems are combined, may be considered as the one which in itself creates preconditions to violate the requirements of free and democratic elections, the universal and equal suffrage, secret ballot, as well as other standards of elections in a democratic state under the rule of law (Constitutional Court ruling of 9 February 2007).

9.2. It needs to be noted that if the legislator chooses only the proportional electoral system, the candidates who are entered only into the lists made by the political parties (or other collective subjects) participating in the elections, may be elected to the representative political institutions or other democratic representative institutions. These lists are made from a certain number of candidates. It also needs to be noted that upon choosing the proportional electoral system, such a situation where in the elections not only the persons entered into the lists drawn up by political parties (or other collective subjects), but also individual persons take part, is impossible, i.e. such a situation is impossible where individual persons compete with lists of candidates. The essence of the proportional electoral system would thus be distorted.

9.3. It has been mentioned in this ruling that, under the Constitution, no such legal regulation is allowed which could prevent from participation of political parties or the candidates either nominated or supported by political parties in elections to representative political institutions. It has also been mentioned that this requirement cannot be construed as entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions.

Thus, the legislator, having chosen only the proportional electoral system, must entrench, in the law, not only the right of political parties to participate in elections, but also establish what other collective subjects can participate and have the right to nominate candidates, by presenting lists of their candidates, in elections to representative political institutions.

9.4. It needs to be noted that the Constitution has entrenched not only the institute of political parties, but also that of political organisations (Paragraph 3 of Article 35, Paragraph 2 of Article 44, Paragraph 2 of Article 83, Paragraph 2 of Article 113, Paragraph 1 of Article 114, Article 141 of the Constitution).

Article 35 of the Constitution prescribes:

Citizens shall be guaranteed the right to freely form societies, political parties and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws.

No one may be compelled to belong to any society, political party, or association.

The founding and activities of political parties and other political and public organisations shall be regulated by law.”

In its ruling of 9 February 2007, the Constitutional Court noted that although the notions “political party” and “political organisation” are close, they are not identical.

Political parties are one of the types of political organisations: they are associations, whose aims or tasks of coming into being are exclusively related to political activity, their striving to get into elected institutions of political power, to participate in exercising inter alia the state power. Under the Constitution, alongside with political parties there may be such organisations, which are joined by persons in order to conduct activities which are useful for society, and in pursuit of this they also raise some political aims, inter alia to participate in elections to representative political institutions. Such organisations, which are founded in order to meet various socially important needs and which, alongside, raise political aspirations, would be in line with the constitutional concept of political organisations. It needs to be noted that the constitutional concept of political organisations encompasses not only such permanently functioning political organisations, but also such political organisations which are founded for participation in concrete elections to the European Parliament (as, for instance, associations for elections).

It has been mentioned that political organisations may not be identified with political parties. Thus, the peculiarities of founding political organisations and their activities must be established in a law.

9.5. It needs to be noted that the legislator, while implementing the provision of Paragraph 3 of Article 35 of the Constitution, regulates the relations of founding political parties and their activities in the law, however, founding political parties and their activities are not regulated at the level of ordinary law. As mentioned, from the Constitution a duty arises to the legislator to regulate these relations by means of a law.

In the context of the constitutional justice case at issue, it needs to be noted that the legislator, while defining the concept of political organisations in the law, may provide for their variety, inter alia for such political organisations, which are founded in order to implement some political aspirations, among other things, in order to participate in concrete elections of the European Parliament.

In the course of entrenching, in the law, the right of political organisations, inter alia those founded in order to participate in elections, to present lists of candidates, special requirements must be entrenched which such organisations must comply, as, for instance: such political organisations may be founded only by the persons (a certain number thereof) who have the active electoral right regarding elections to the European Parliament (not only citizens of the Republic of Lithuania, but also citizens of other Member States of the European Union, who permanently reside in Lithuania) etc.

10. It has been mentioned that the proportional electoral system may not be considered as the one which in itself creates preconditions to violate the requirements of free and democratic elections, the universal and equal suffrage, secret ballot, as well as other standards of elections in a democratic state under the rule of law.

It has also been mentioned that if the legislator chooses only the proportional electoral system, the candidates who are entered only into the lists drawn up by the collective subjects participating in the elections, may be elected to the representative political institutions.

It has been mentioned in this ruling that, under the Constitution, the legal regulation entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions is not allowed.

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

11. While deciding whether Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was not in conflict with the Constitution, it needs to be noted that, as mentioned, under the disputed legal regulation, citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union who permanently reside in Lithuania may be elected as Members of the European Parliament on the basis of proportional electoral system provided their candidacies are nominated by the political parties, which have the exclusive right to present lists of candidates and which enlisted them into the lists of candidates.

12. It has been mentioned that the provision of Paragraph 2 of Article 34 of the Constitution that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws inter alia means that the legislator, while regulating, by means of laws, the implementation of the passive electoral right in electing representative political institutions has the constitutional duty to heed the imperatives, inter alia the principles of electoral law, which arise from the Constitution.

13. It has also been mentioned that in the Republic of Lithuania Law on Elections to the European Parliament only the proportional system of elections to the European Parliament is entrenched. The proportional electoral system as such may not be considered as the one which in itself creates preconditions to violate the principle of direct elections entrenched in the Constitution, the requirements of free and democratic elections, the universal and equal suffrage, secret ballot, as well as other standards of elections in a democratic state under the rule of law.

It has been held in this Constitutional Court ruling that no such legal regulation is allowed which could prevent from participation of political parties or the candidates either nominated or supported by political parties in elections to representative political institutions. Consequently, under the Constitution, such (proportional) electoral system entrenched in the Republic of Lithuania Law on Elections to the European Parliament, where candidates entered into lists of political parties compete for mandates of Members of the European Parliament, is allowed. However, the right of political parties to nominate candidates in the elections to the European Parliament may not be entrenched as the exclusive one.

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

Thus, upon establishing only the proportional electoral system in the Republic of Lithuania Law on Elections to the European Parliament, the legal regulation whereby only political parties can present lists of candidates in the elections to the European Parliament is not constitutionally justifiable.

14. It needs to be held that such legal regulation entrenched in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament whereby it was established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties deviated from the constitutional concept of elections, therefore, the requirements (stemming from Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law) for the legislator regarding regulation of electoral relations were thus violated.

15. Taking account of the arguments set forth, one is to draw a conclusion that Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was in conflict with Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.

16. It has been mentioned that after the Seimas had adopted, on 12 February 2009, the Law on Amending Articles 1 and 36 of the Law on Elections to the European Parliament, inter alia Paragraph 2 (wording of 20 November 2003) of Article 36 of the Law on Elections to the European Parliament was amended, however, the legal regulation established in Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament, whereby citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union who permanently reside in Lithuania may be elected as Members of the European Parliament provided their candidacies are nominated by the political parties that enlisted them into the lists of candidates, remained unchanged. The exclusive right (which was entrenched in the Law on Elections to the European Parliament) of political parties to present lists of candidates in the elections to the European Parliament remained as well.

It has been mentioned that, under Article 36 (wording of 12 February 2009) of the Law on Elections to the European Parliament, citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union who permanently reside in Lithuania may be elected as Members of the European Parliament on the basis of proportional electoral system provided their candidacies are nominated by the political parties, which have the exclusive right to present lists of candidates, and which enlisted them into the lists of candidates. Thus, Article 36 (wording of 12 February 2009) of the Law on Elections to the European Parliament Republic of Lithuania provides that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties.

17. While taking account of this and on the grounds of the arguments that are analogous to those on whose grounds in this ruling the Constitutional Court has recognised that Article 36 (wording of 8 May 2008) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was in conflict with Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law, it needs to be held that Article 36 (wording of 12 February 2009) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, is also in conflict with Paragraph 2 of Article 34 of the Constitution.

18. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Article 36 (wordings of 8 May 2008 and 12 February 2009) of the Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was (is) not in conflict with Paragraph 2 of Article 29, Paragraph 2 of Article 35 and Paragraph 1 of Article 135 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

1. To recognise that Article 36 (wording of 8 May 2008; Official Gazette Valstybės žinios, 2008, No. 59-2202) of the Republic of Lithuania Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was in conflict with Paragraph 2 of Article 34 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Article 36 (wording of 12 February 2009; Official Gazette Valstybės žinios, 2009, No. 19-743) of the Republic of Lithuania Law on Elections to the European Parliament to the extent that it is established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may be elected to the European Parliament only if they are enlisted in the lists of candidates to Members of the European Parliament, which are drawn up by political parties, is in conflict with Paragraph 2 of Article 34 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis