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On elections to municipal councils

Case No. 21/2003

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 4 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE SUPPLEMENT AND AMENDMENT OF ARTICLES 86 AND 87 OF THE LAW ON ELECTIONS TO MUNICIPAL COUNCILS AND ITS SUPPLEMENT WITH ARTICLE 881 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 457) “ON THE DISMISSAL OF THE CHIEF OF THE VILNIUS COUNTY” OF 11 APRIL 2003 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 9 OF THE REPUBLIC OF LITHUANIA’S LAW “ON THE PROCEDURE OF THE PUBLICATION AND ENTRY INTO FORCE OF LAWS AND OTHER LEGAL ACTS OF THE REPUBLIC OF LITHUANIA”

30 May 2003
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

Nijolė Šidagienė, Chairperson of a panel of judges, acting as the representative of the Vilnius Regional Administrative Court, the petitioner

Seimas member Petras Papovas and Pranas Žukauskas, chief specialist of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned

Rasa Budbergytė, Secretary of the Ministry of the Interior of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, a 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 13 May 2003, in its public hearing, considered case No. 21/2003 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation

1) into whether Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 which provides that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office was not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution of the Republic of Lithuania;

2) into whether the Resolution of the Government of the Republic of Lithuania (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania and Paragraph 1 of Article 9 of the Republic of Lithuania’s Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

The Constitutional Court

has established:

I

The petitioner, the Vilnius Regional Administrative Court, was considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation

1) into whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 (Official Gazette Valstybės žinios, 2003, No. 17-711; hereinafter also referred to as the Law) which provides that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office was not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution.

2) into whether the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 (Official Gazette Valstybės žinios, 2003, No. 36-1581) was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

II

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

1. In its ruling of 24 December 2002, the Constitutional Court held that the Constitution consolidates the principle of the prohibition on a dual mandate and that 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. In addition, 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. In the said ruling, the Constitutional Court held, inter alia, that if 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 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 his previous office or to be a member of the municipal council.

On 28 January 2003, the Seimas adopted the Republic of Lithuania’s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 and established by Article 1 of the said law that the office of a municipal council member shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration. The legislature established in Paragraph 2 of Article 4 of the said law that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office. The petitioner notes that such legal regulation permitted certain persons during the first sitting of the municipal council to hold the office of a municipal council member and, at the same time, the office of a member of the Seimas or other office incompatible with the office of a municipal council member. Therefore, the court had doubts whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 is not in conflict with the principle of the separation of powers entrenched in Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and the principle of the prohibition on a dual mandate entrenched in Paragraphs 1 and 2 of Article 60 of the Constitution.

2. By the impugned Resolution “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003, the Government dismissed Gediminas Paviržis from the office of the Chief of the Vilnius County as from the date indicated in his application. The said resolution was published in the official gazette Valstybės žinios on 16 April 2003; the resolution did not establish a later date of its entry into force. According to the petitioner, G. Paviržis handed in his application to the Government, requesting dismissing him from office on 8 April 2003.

It is noted in the petition of the petitioner that, according to Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”, the resolutions by the Government shall come into force following the day, when signed by the Prime Minister and the appropriate minister, they shall be published in the official gazette Valstybės žinios, provided a later date of their coming into force has not been established by the resolution itself.

Therefore, the court had doubts whether the impugned government resolution was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, a party concerned, who were P. Papovas, a member of the Seimas, and P. Žukauskas, chief specialist of the Legal Department of the Office of the Seimas, and the representative of the Government, a party concerned, who was R. Budbergytė, Secretary of the Ministry of the Interior.

1. It is noted in the explanations by the representative of the Seimas, a party concerned, who was P. Papovas, that the Constitutional Court’s ruling of 24 December 2002 was adopted in the case in which one did not investigate the issues of the compliance of the provisions of the Law on Elections to Municipal Councils.

The representative of the party concerned maintains that the Constitution does not contain any prohibition for a member of the Seimas against holding the office of a municipal council member, as, under Paragraph 1 of Article 60 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, meanwhile, the municipal council is a municipal institution but not a state institution or organisation. Therefore, in the opinion of the representative of the party concerned, until the said ruling of the Constitutional Court went into effect, members of the Seimas were not prohibited from being municipal council members, either.

P. Papovas also notes that, under the Republic of Lithuania’s Law on Administrative Supervision of Municipalities, representatives of the Government shall exercise administrative supervision of municipalities, who are prohibited, by law, to be members of the councils of the municipalities which are supervised by them. The representative of the party concerned doubts whether the county chief or his deputy should be categorised as persons exercising the functions of implementation of state authority, or as state officials who, under the Constitution and laws, enjoy the powers to control or supervise activities of municipalities. Therefore, P. Papovas believes that until the Constitutional Court’s ruling of 24 December 2002 went into effect, county chiefs and their deputies had been allowed to be members of municipalities.

It is noted in the explanations of the representative of the party concerned that the Constitutional Court’s ruling of 24 December 2002 was adopted after the elections of municipal councils. Until the said ruling went into effect, and until the elections to municipal councils, members of the Seimas, county chiefs and their deputies, according to the laws of the Republic of Lithuania, were permitted to be municipal council members as well. Therefore, they, when taking part in the elections of municipal councils, expected to become members of the councils and undertook certain obligations to the voters. In the opinion of P. Papovas, in this case one ought to apply the principle of legitimate expectations.

The representative of the Seimas points out that a municipal council member begins to hold his office, i.e. acquires the powers of a municipal council member, only at the first sitting of the municipal council. In the opinion of P. Papovas, the provisions of the law concerning the decision to hold the previous office until the first sitting of the council and those concerning the dismissal from office after one begins to hold the office of a council member, do not contradict each other. According to the representative of the Seimas, the provision “an elected member of the council, who has decided to refuse the mandate of a member of the council, not later than 10 days from the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it to the said commission as confirmed by the notary, on the refusal of the mandate of a member of the municipal council” of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils provides for the procedure for the refusal of the mandate of a municipal council member and the time before the first sitting of the council. According to P. Papovas, the provision consolidated in Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office do not deny an opportunity for a person elected as a municipal council member to refuse the mandate of a municipal council member before the first sitting; besides, this norm is of a one-off character. The representative of the Seimas notes that if one does not refuse the office of the municipal council member until the first sitting of the council, the Central Electoral Commission has the cause to recognise, within 15 days, the powers of the municipal council member to be terminated. Thus, according to the assessment by P. Papovas, the legislature, while adopting the provision not to apply the norms of Paragraph 2 of Article 881 to the members of municipal councils of the 2003–2007 term of office concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council virtually did not deny an opportunity to do so in a voluntary manner, also, it did not deny the constitutional principle of the prohibition on a dual mandate nor the prohibition against being a municipal council member and, at the same time, holding an office incompatible with the office of a council member.

In the opinion of the representative of the Seimas, while adopting the impugned provision of the Law, the Seimas did not violate the provisions of Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution.

2. The representative of the party concerned P. Žukauskas notes in his explanations that the impugned norm of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 which provides for exceptions for the prohibition on the compatibility of the office of a municipal council member and a person, who, according to his office, discharges the functions of implementation of state authority or who has the right to control or supervise the activity of municipalities, is not directly related to Paragraph 1 of Article 5 of the Constitution. Paragraph 1 of Article 5 of the Constitution consolidates the principle of the separation of powers and establishes the list of institutions implementing state authority. This provision of the Constitution does not encompass the legal relations of local self-government or legal regulation of the status of the officials implementing state authority, therefore, in the opinion of the representative of the Seimas, the impugned norm of the law should not be regarded as conflicting with Paragraph 1 of Article 5 of the Constitution.

While assessing the relation of the impugned norm with the provisions of Paragraph 1 of Article 7 and Paragraphs 1 and 2 of Article 107 of the Constitution, the representative of the party concerned maintains that, after the impugned legal norm had been adopted, one did not create a legal situation by which one would have attempted to overcome or overrule the decision of the Constitutional Court or to adopt a clearly anti-constitutional legal norm. P. Žukauskas draws one’s attention to the fact that the Constitutional Court did not consider the constitutionality of the Law on Elections to Municipal Councils and that, in its ruling of 24 December 2002, it did not discuss the procedure, terms etc. of the refusal of the mandate.

The representative of the party concerned also underlines that while assessing the compliance of the impugned norm with the Constitution, one has to assess not only its relations with individual provisions of the Constitution. Paragraph 1 of Article 6 of the Constitution contains the provision that “the Constitution shall be an integral and directly applicable act”. The Constitution consolidates one of the fundamental principles of constitutional law and of law in general, which is the principle of a state under the rule of law, which implies, among other things, legal certainty and stability as well as protection of legitimate expectations. According to the representative of the Seimas, by the impugned norm one attempted to state the aim of the legislature to evade a legal situation in which the legal status of the persons elected as municipal council members during the 2002 municipal council elections would become a matter of different legal regulation. Thus, the legitimate expectations of the residents who had made use of both the active and passive electoral right would virtually have been disregarded, the results of the elections to municipal councils would have been distorted and the formation of the municipal councils would have been disarrayed. Having established that candidates for the municipal councils of the next term of office have to be aware already prior to the elections that they must refuse the work incompatible with the office of a municipal council member, the Seimas attempted to follow the principles of a harmonious civil society and state under the rule of law and those of democracy, which are expressed in the Constitution; the legislature showed that he was willing to follow the provision that in a state under the rule of law democratic standards are also expressed by the fact that one cannot establish any procedures, which would violate democratic standards on a level (or in part) of the state. The 2002 municipal council elections took place in the legal situation in which the laws did not establish any procedure for a loss of the mandate of a municipal council member due to the incompatibility qualification, therefore, the regulation of the formation of municipal councils under different standards would distort the will of the voters and the principle of equal elections.

Taking account of the reasoning of the legislature at the time of the adoption of the impugned norm of the law, the representative of the Seimas believes that Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 is not in conflict with the Constitution as an integral and directly applicable act, thus, also with Paragraph 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution.

3. The representative of the Government, a party concerned, R. Budbergytė notes as to the compliance of the impugned government resolution with the Constitution and the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania” that the principle lex retro non agit is related with the validity of only normative legal acts but not with that of individual legal acts, since only normative legal acts formulate a common rule of conduct the compliance with which cannot be applied to a person at the time of his activity as to a rule of conduct that he is not aware of.

The representative of the Government points out that no rule of general conduct is formulated by the impugned government resolution: it is designed for a concrete subject, i.e. G. Paviržis, Chief of the Vilnius County; this resolution does not regulate general relations, but it decides a particular situation, i.e. the end of service of a concrete public servant. Thus, in the opinion of R. Budbergytė, government resolution No. 457 of 11 April 2003 may not be held a normative legal act in whose regard the principle of the prohibition on the retroactive validity of the law is applicable.

According to the representative of the Government, it is not permitted to apply the principle of the prohibition on the retroactive validity of the law to individual acts of the application of law, since they, as a rule, regulate legal relations of the past.

In the opinion of R. Budbergytė, since the impugned government resolution is an individual act of application of law, its legality is determined not by its compliance with the Constitution, laws and other legal acts, but by just and lawful application of the said legal act to the legal relations regulated by it. Therefore, in the opinion of the representative of the Government, the said resolution is in not conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution.

In the explanations of the representative of the party concerned it is also noted that the Government, while implementing the competence established to it by law, must state its will not only in deciding the affairs of state administration, but also regulating other relations, which are or can be the basis of the administration of state governance. According to R. Budbergytė, the impugned resolution of the Government was deciding not affairs of state administration but regulated legal relations of public service, which are the basis of state administration.

The representative of the Government also notes that the basis of the adoption of the government resolution of 11 April 2003 was the application of 7 April 2003 by G. Paviržis, Vilnius County Chief, which was grounded on the fact that he had been elected a member of the municipal council of the Vilnius city, and the protocol decision of the 9 April 2003 government sitting, stating that one has “to take account of the information submitted by the Minister of the Interior J. Bernatonis, that G. Paviržis, Vilnius County Chief, submitted his application to the Prime Minster requesting dismissing him from the office of the Chief of the Vilnius County, as he is elected to the municipal council of Vilnius city, while the draft resolution of the Government of the Republic of Lithuania, formalising this dismissal shall be presented for the nearest sitting of the Government of the Republic of Lithuania” (question 14 of sitting protocol No. 16).

In the opinion of R. Budbergytė, the Constitutional Court, when it held in its ruling of 29 November 2001 that “only one type of legal acts of the Government that it is entitled to adopt, while resolving the affairs of state administration, is established in the Constitution, which is a resolution”, emphasised that the will of the Government is stated when it implements affairs of state administration, but not to regulate the (employment) relations of public service, which are or can be the basis of administration of state governance. The representative of the Government maintains that the Government, while deciding the issue of dismissal of the Chief of the Vilnius County, i.e. when it was expressing its will in the field of the legal relations of public service, it was not necessarily supposed to be expressed by adopting a resolution and, since the said resolution is an individual act of application of law, the will expressed by the Government should not and could not be prospective, as the said resolution regulated legal relations of the past.

The representative of the Government maintains that the Government expressed its will as regards the dismissal of the Chief of the Vilnius County by adopting the aforesaid protocol decision, which, subsequently, i.e. at the 11 April 2003 sitting, was formalised by government resolution, which was published in the official gazette Valstybės žinios and went into effect under the conditions and procedure set down in Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

In the opinion of R. Budbergytė, government resolution No. 457 of 11 April 2003 is not in conflict with Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

IV

1. At the Constitutional Court hearing, the representative of the petitioner N. Šidagienė, the representatives of the parties concerned P. Papovas, P. Žukauskas and R. Budbergytė virtually reiterated the arguments set forth in their written explanations and presented additional explanations.

2. N. Šidagienė, the representative of the Vilnius Regional Administrative Court, emphasised that the petitioner does not impugn the constitutionality of the amendments of Articles 86 and 881 of the Law on Elections to Municipal Councils, which were adopted on 28 January 2003, however, after one had established by Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 that the beginning of the application of the said amendments, which changed the legal regulation that had been in conflict with the Constitution, was to be postponed until the election of municipal councils of the next term of office, one created an opportunity to apply the former unconstitutional legal regulation, which existed until 28 January 2003.

3. P. Papovas, a representative of the Seimas, a party concerned, explained that the provision of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881, which is impugned by the petitioner, granted the right to the persons which hold the office incompatible with the office of a municipal council member to participate in the first sitting of newly elected municipal councils.

4. P. Žukauskas, a representative of the Seimas, a party concerned, explained that the elections to the municipal councils of the 2003–2007 term of office had taken place before the adoption of the Constitutional Court’s ruling of 24 December 2002 in which it was held that that the Constitution consolidates the principle of the prohibition on a dual mandate. In the opinion of P. Žukauskas, if one starts to apply this principle to the persons who have been elected without applying this principle, one would distort the will of the voters for municipal councils and violate their legitimate expectations. According to the representative of the Seimas, by the provision of the Law, which is impugned by the petitioner, the legislature attempted to protect legitimate expectations.

5. R. Budbergytė, the representative of the Government, a party concerned, explained that, in her opinion, the Government can decide the question of dismissal of the chief of a county from office by adopting a so-called protocol decision (i.e. a decision, which is formalised by entering it into the minutes of the government sitting). According to the representative of the Government, G. Paviržis was dismissed from the office of the Chief of the Vilnius County by the “protocol decision” of 9 April 2003.

The Constitutional Court

holds that:

I

On the compliance of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution.

1. On 28 January 2003, the Seimas adopted the Republic of Lithuania’s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881, which provides:

Article 1. Supplement of Article 86 with Item 9

To supplement Article 86 with Item 9:

9) if a council member takes the office or does not refuse the office incompatible with the office of a municipal council member.”

Article 2. Amendment of Paragraph 1 of Article 87

After the word “terminated” in Paragraph 1 of Article 87, to enter the words “or he loses the mandate of a council member” and set forth this paragraph as follows:

1. A vacant position of a council member occurs if the powers of the council member are recognised as terminated or he loses the mandate of a council member. It is occupied in the following way: the first candidate who did not receive the mandate, from the post-elections candidate list according to which the former council member had been elected, shall become a council member. If there are no more candidates who did not receive the mandate on this list, the mandate of a council member shall be transferred to another list according to the order of succession of the lists of candidates made after the election for the distribution of mandates by the method of remainders, i.e., the list which comes first following the list which was the last to receive its mandate according to this order of succession, and the first candidate who has not received his mandate and who appears on the list with the newly-received mandate shall become a council member. The Central Electoral Commission must adopt the decision concerning recognition of the mandate of a council member for a new council member within 7 days after the occurrence of the vacant seat in the council.”

Article 3. Supplementing Article 881 to the Law

To supplement the Law with Article 881:

Article 881. The office incompatible with the office of a municipal council member, and the loss of the mandate of a council member

1. The office of a council member shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration.

2. If a person, when holding the office specified in Paragraph 1 of this Article, is elected a municipal council member or, being a municipal council member holds or begins to hold the office specified in Paragraph 1 of this Article, he must make a choice and refuse either this office, or the mandate of a municipal council member. An elected member of the council, who has decided to refuse the mandate of the council member, not later than 10 days until the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it as confirmed by the notary, on the refusal of the mandate of a municipal council member. Upon receiving the application, the Central Electoral Commission by the rights of the mandate commission shall, not later than 7 days until the first sitting of the municipal council, adopt a decision concerning the loss of the mandate of a municipal council member and recognition of the mandate of a new council member. Candidates to a vacant seat of a council member from the post-electoral list who have decided to refuse the mandate of a council member, must also hand in an application to the Central Electoral Commission concerning the refusal of the mandate of a municipal council member not later than 7 days until the first sitting of the municipal council. The Central Electoral Commission shall adopt a decision concerning a person who enjoys the powers of a council members and holds or begins to hold the office incompatible with the office of a municipal council member, according to the procedure consolidated in Articles 86 and 87 of this Law.”

Article 4. Final provisions

1. This Law shall come into force on 25 February 2003.

2. The norms of Paragraph 2 of Article 881 of the Law on the Elections to the Municipal Council as stipulated in Article 3 of the Law concerning the refusal of the mandate of a council member by a person elected as a municipal council member until the first sitting of the municipal council shall be applied from the elections to the municipal councils of the next term of office.”

2. The petitioner requests an investigation into whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 which provides that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution of the Republic of Lithuania.

3. It is clear from the case material that the said law was adopted as a reaction to the Constitutional Court’s 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” of 24 December 2002.

It was held in the Constitutional Court’s ruling of 24 December 2002 that, according to the Constitution, state administration and local self-government are two systems of public authority, that 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, that the Constitution consolidates the principle of the prohibition on a dual mandate, that 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. It was also stated in the said ruling of the Constitutional Court that in cases when there occurs a legal situation when 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 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.

It has to be noted that the wording “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”, employed in the Constitutional Court’s ruling of 24 December 2002, means that before the newly elected municipal council convenes to the first sitting, the person must, according to the procedure established by law, declare his decision either to remain in office or to be a member of the municipal council, also that before the newly elected municipal council convenes to the first sitting, the question of the legal status of this person must be decided: if the person has decided to be a member of the municipal council, then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost his office which was incompatible with the office of a member of the municipal council, but if the person has decided to remain in office and not to be a member of the municipal council then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost the mandate of a member of the municipal council. The law must establish the legal regulation, according to which the said question of the legal status of the person is decided before the newly elected municipal council convenes to the first sitting.

4. Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 establishes the procedure of application of the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils which are stipulated in Article 3 of the Law. Thus, the provisions of Paragraph 2 of Article 4 and those stipulated in Article 3 of the Law are inseparable, therefore, the content of the impugned Paragraph 2 of Article 4 of the law should be construed, while taking account of the provisions of Article 881 of the Law on Elections to Municipal Councils provided by Article 3 of the Law.

4.1. It has been mentioned that the legislature supplemented the Law on Elections to the Municipal Councils with Article 881 by Article 3 of the Law and established by Article 1 that the office of a member of the municipal council shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration.

In Paragraph 2 of Article 881 of the Law on Elections to the Municipal Councils, the legislature consolidated, inter alia, the provisions which obligate the person, who holds the office specified in Paragraph 1 of this article and is elected as a member of the municipal council, to make a choice and refuse either this office, or the mandate of a member the municipal council, and established that “an elected member of the council, who has decided to refuse the mandate of the council member, not later than 10 days until the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it as confirmed by the notary, on the refusal of the mandate of a municipal council member. Upon receiving the application, the Central Electoral Commission by the rights of the mandate commission shall, not later than 7 days until the first sitting of the municipal council, adopt a decision concerning the loss of the mandate of a municipal council member and recognition of the mandate of a new council member”.

Thus, the said provisions of Paragraph 2 of Article 881 obligate the person who is elected as a member of the municipal council and who holds the office incompatible with the office of a council member to refuse either this office or the mandate of a member of the municipal council before the newly elected municipal council convenes to the first sitting.

4.2. It has been mentioned that Paragraph 2 of Article 4 of the Law provides that the provisions of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a council member by a person elected as a municipal council member until the first sitting of the municipal council shall be applied from the elections to the municipal councils of the next term of office.

While construing the content of legal regulation established by Paragraph 2 of Article 4 of the Law, one should pay attention to the fact that the Law came into force on 25 February 2003. The elections to the municipal councils of the 2003–2007 term of office were held on 22 December 2002. It should be noted that upon the entry into force of this law, the first sittings of the newly elected municipal councils of the 2003–2007 term of office had not been held yet.

Thus, the legal regulation established by Paragraph 2 of Article 4 of the Law means that a person elected to the municipal council during the elections to the municipal councils of the 2003–2007 term of office, whose office is incompatible with the office of a member of the municipal council and who has “decided to refuse the mandate of a member of the municipal council” under Article 3 of the Law, need not declare his decision to refuse the mandate of a member of the municipal council before the first sitting of the newly elected municipal council, and that it need not be stated before the first sitting of the newly elected municipal council that the person in question has lost the mandate of a member of the municipal council. Alongside, this legal regulation implies that the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration may keep their office and be members of the municipal council if they are elected as members of the municipal councils.

Thus, the application of the provision of Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils is in fact postponed by the legal regulation provided for by Paragraph 2 of Article 4 of the Law until the elections to the municipal councils of the next term of office.

5. The Constitution shall be an integral 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.

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 (the Constitutional Court’s ruling of 24 December 2002).

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.

6. While deciding whether Paragraph 2 of Article 4 of the Law is not in conflict with the Constitution, one should take account of the content of state administration and local self-government, as two systems of public authority, as well as of the status of a member of the municipal council, and that of persons specified in Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils: the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration, which are consolidated in the Constitution and/or laws.

7. Under the Constitution, state administration and local self-government are two systems of public authority.

7.1. The municipality is a community of a territorial administrative unit of the state established by law, which enjoys the right of 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 public administration system operating on the basis of self-action principles, and which is not directly subordinate to state authority institutions.

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, should be regarded as a guarantee of the participation of these local communities in administration of these territories (the Constitutional Court’s ruling of 28 June 2001).

Local self-government is the power of communities of administrative territorial units established by law, which is formed and operates on different constitutional grounds than state administration. The Constitution does not identify self-government with state administration (the Constitutional Court’s rulings of 14 January 2002 and 24 December 2002). State administration and local self-government, as two systems of the implementation of public authority, are interrelated, however, each of them implements its characteristic functions.

State administration shall be implemented through establishments of state authority and other institutions specified by the Constitution and laws. The right of self-government shall be implemented through corresponding municipal councils (Paragraph 1 of Article 119 of the Constitution). The municipal councils, as self-government institutions, are representative institutions, the members of which are elected by the residents of an administrative unit. Municipal councils are institutions through which the right of self-government of corresponding communities is implemented, while members of a municipal council are representatives of a corresponding territorial community. They have the mandate of this territorial community.

7.2. Paragraph 1 of Article 5 of the Constitution provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute state power.

7.2.1. Under Paragraph 1 of Article 55 of the Constitution, the Seimas shall consist of representatives of the Nation—members of the Seimas. The constitutional status of a member of the Seimas, a representative of the Nation, means that a member of the Seimas is not a representative of any territorial community, a community or group of the citizens, a political party or some other organisation; he represents the whole Nation. The status of a member of the Seimas, a representative of the Nation, arises out of the provisions of the Constitution that the State of Lithuania shall be an independent democratic republic (Article 1), that the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives (Article 4), etc. The essential element of the status of a Seimas member, as a representative of the Nation, is a free mandate.

While interpreting Paragraph 4 of Article 59 of the Constitution, providing that 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, the Constitutional Court in its rulings of 26 November 1993 and 25 January 2001 stated that the Constitution consolidates a free mandate of a member of the Seimas and does not recognise an imperative mandate.

The essence of the a mandate is that a representative of the Nation is free to implement the rights and duties vested in him without restricting this freedom by mandates of the electorate, political requirements of parties or organisations which have promoted him. A free mandate also means that the voters have no right to recall a member of the Seimas. A pre-term recall of a member of the Seimas would constitute one of the elements of an imperative mandate. The Constitution prohibits an imperative mandate. Democratic states do not recognise the imperative mandate of a parliament member, thus, the possibility of a pre-term recall of a parliament member from his office does not exist, either.

It is also noteworthy that the Constitution consolidates the immunity of a Seimas member in order that members of the Seimas as representatives of the Nation might discharge their duties without any hindrance. Article 62 of the Constitution provides that the person of a member of the Seimas shall be inviolable; a member of the Seimas may not be held criminally liable, arrested, or have his freedom otherwise restricted without the consent of the Seimas (Paragraphs 1 and 2 of Article 62).

Under 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). A member of the Seimas may not receive any other remuneration (save that of the member of the Seimas), with the exception of remuneration for creative activities (Paragraph 3 of Article 60 of the Constitution).

Thus, the Constitution consolidates the principle of the prohibition on a dual mandate: a member of the Seimas, as a representative of the Nation, may not be a representative of a territorial community, i.e. a member of the municipal council, at the same time.

The legal regulation according to which the same person could be both a member of the Seimas and a member of the municipal council at the same time would be in conflict with Article 4, Paragraph 4 of Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of Article 119 and Paragraph 2 of Article 120 of the Constitution.

7.2.2. According to Article 77 of the Constitution, the President of the Republic shall be the Head of State; he shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws.

Only one person, i.e. the President of the Republic, who is elected by the citizens of the Republic of Lithuania, acquires the status of the Head of State for the term established by the Constitution. Under the Constitution, the legal status of the President of the Republic, as the Head of State, differs from the legal status of all other state officials (the Constitutional Court’s ruling of 19 June 2002).

The individual and exceptional legal status of the President of the Republic, as the Head of State, is disclosed by various norms of the Constitution, provisions of Paragraph 1 of Article 83 amongst them according to which 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.

It should be noted that the Constitution establishes the immunity of the President of the Republic in order that the President of the Republic might discharge the functions of the Head of State without any hindrance. Paragraph 1 of Article 86 of the Constitution establishes that the person of the President of the Republic shall be inviolable; while in office, he may neither be arrested nor be held criminally or administratively liable.

Thus, according to the Constitution, the same person may not be both the President of the Republic and a member of the municipal council at the same time.

The legal regulation according to which the same person could be both the President of the Republic and a member of the municipal council at the same time would be in conflict with Paragraph 1 of Article 83, Paragraph 1 of Article 119 and Paragraph 2 of Article 120 of the Constitution.

7.2.3. Under the Constitution, the Government is a joint institution of executive power which is composed of the Prime Minister and Ministers.

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). According to Paragraph 2 of Article 60 of the Constitution, the Prime Minister and Ministers may be members of the Seimas at the same time.

It is also noteworthy that the Constitution establishes the immunity of the Prime Minister and Ministers so that the Government might discharge the duties assigned to it by the Constitution and laws without any hindrance. Article 100 of the Constitution provides that the Prime Minister and Ministers may not be held criminally liable, arrested, and otherwise restricted of their freedom without the prior consent of the Seimas, while between sessions of the Seimas—without the prior consent of the President of the Republic.

Thus, according to the Constitution, the same person may not be both a member of the Government and a member of the municipal council at the same time.

The legal regulation, according to which the same person could be both a member of the Government and a member of the municipal council at the same time would be in conflict with Article 99, Paragraph 1 of Article 119 and Paragraph 2 of Article 120 of the Constitution.

7.2.4. Paragraph 1 of Article 109 of the Constitution establishes that in the Republic of Lithuania, justice shall be administered solely by courts. Under Paragraph 2 of this article, while administering justice, the judge and courts shall be independent.

Paragraph 1 of Article 113 of the Constitution provides: “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”.

One of the guarantees of independence of judges, consolidated by the Constitution, is the immunity of judges. Paragraph 2 of Article 114 of the Constitution provides that the judge may not be criminally liable, arrested, or otherwise restricted of his freedom without the consent of the Seimas, or between sessions of the Seimas, of the President of the Republic.

Thus, according to the Constitution, the same person may not be both a judge and a member of the municipal council at the same time.

The legal regulation according to which the same person could be both a judge and a member of the municipal council at the same time would be in conflict with Paragraph 1 of Article 113, Paragraph 1 of Article 119 and Paragraph 2 of Article 120 of the Constitution.

7.3. It has been mentioned that the Constitution consolidates immunities for the President of the Republic, members of the Seimas, members of the Government and judges so that they might discharge functions of implementation of state authority assigned to them by the Constitution: such immunities are inviolability of the person and a special procedure for bringing to criminal and/or administrative responsibility. According to the Constitution, members of municipal councils do not enjoy the said immunities. Under the Constitution, a legal situation when members of the municipal councils are persons, who possess the said immunities, is impossible; members of the municipal councils may not be unequal according to their legal status (the Constitutional Court’s ruling of 24 December 2002).

8. It has been mentioned that Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils provides that the office of a member of the municipal council shall be incompatible with the office of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration.

8.1. Under to the Constitution, state officials who, according to the Constitution and laws, enjoy the powers to control or supervise activities of municipalities, may not be members of the municipal councils (the Constitutional Court’s ruling of 24 December 2002).

The formula “state officials who, according to the Constitution and laws, enjoy the powers to control or supervise activities of municipalities” should be construed as comprising also those state officials on whose decisions depends the implementation of the competence of the municipal councils provided for by the Constitution.

8.1.1. Paragraphs 2 and 3 of Article 123 of the Constitution provide:

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 powers of the Government representative and the procedure of their execution shall be established by law.”

Since the Government representatives, under the Constitution, are empowered to supervise the activities of the municipal councils, they may not be members of the municipal councils at the same time.

The legal regulation according to which the same person could be both the Government representative and a member of the municipal council at the same time would be in conflict with Paragraph 1 of Article 119, Paragraph 2 of Article 120 and Paragraph 2 of Article 123 of the Constitution.

8.1.2. Paragraph 1 of Article 134 of the Constitution provides that the National Audit Office shall supervise the lawfulness of the possession and use of State property and the execution of the State Budget (Paragraph 2 of Article 133 of the Constitution).

The system and powers of the National Audit Office shall be established by law (Paragraph 1 of Article 133 of the Constitution).

Under Paragraph 2 of Article 9 of the Republic of Lithuania’s Law on the National Audit Office, the National Audit Office shall have a right to audit the implementation of municipal budgets; the National Audit Office shall perform an audit of the management, use and disposal of municipal property in accordance with the scope of government auditing as defined in Paragraph 2 of Article 14 of this law. Paragraph 1 of Article 13 of the same law provides that the National Audit Office shall carry out a financial and activity audit, while Item 1 of Paragraph 2 of Article 14 specifies that municipalities are one of the subjects of an activity audit.

As the Auditor General is empowered to control and supervise the activities of the municipal councils, he may not be a member of the municipal council at the same time.

The legal regulation according to which the same person could be both the Auditor General and a member of the municipal council at the same time would be in conflict with Paragraph 1 of Article 119, Paragraph 2 of Article 120 and Paragraph 1 of Article 134 of the Constitution.

8.2. Under Paragraph 1 of Article 123 of the Constitution, in higher level administrative units, the administration shall be organised by the Government in accordance with the procedure established by law. In its ruling of 18 February 1998, the Constitutional Court held that local administration is fulfilment of state administration (i.e. the executive power) functions in particular localities, i.e. respective administrative units.

Under Paragraph 1 of Article 1 of the Republic of Lithuania’s Law on the Governing of the County, the county is a higher territorial administrative unit of the Republic of Lithuania, the governing of which shall be organised by the Government through the chief of the county, the Ministries and other Government institutions; the government of the county is a constituent part of state administration. The chief of the county shall be appointed and dismissed from office by the Government upon presentation by the Prime Minister (Paragraph 1 of Article 4 of the Law on the Governing of the County, Item 14 of Article 22 of the Law on the Government). For the discharge of the functions assigned to him, the chief of the county shall form and run the administration (Paragraph 1 of Article 18 of the Law on the Governing of the County).

Thus, according to the laws, the chief of the county is a state official through which the Government organises state administration of a higher administrative unit (county). In the absence of the chief of the county, his duties shall be executed by the deputy chief of the county (Paragraph 2 of Article 19 of the Law on the Governing of the County).

It has been mentioned that, under the Constitution, state administration and local self-government are two systems of public authority. State administration is executed through establishments of state authority and other state institutions specified by the Constitution and laws. The right of self-government is implemented through corresponding municipal councils.

According to the Constitution, municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws (Paragraph 2 of Article 120 of the Constitution).

It should also be noted that, according to the laws, the chief of the county is empowered to adopt decisions, on which belongs the implementation of the competence of the municipal councils, which is provided for by the Constitution and laws.

Since the chief of the county is a state official, through which the Government organises the state governing of a higher administrative unit (county), and, under the laws, the chief of the county is empowered to adopt decisions on which belong the implementation of the competence of the municipal councils, which is provided for by the Constitution and laws, the chief of the county (his deputy) may not be a member of the municipal council at the same time.

The legal regulation according to which the same person could be both the chief of the county (the deputy chief of the county) and a member of the municipal council at the same time would be in conflict of Paragraph 1 of Article 119, Paragraph 2 of Article 120 and Paragraph 1 of Article 123 of the Constitution.

8.3. The Constitution consolidates the principle of superiority of municipal councils in regard to the executive bodies which are accountable to the former. This principle means, inter alia, that 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 (the Constitutional Court’s ruling of 24 December 2002).

Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on Local Self-Government provides that the director of the municipal administration shall be the executive institution of the municipality. Under Paragraph 2 of Article 29 of this law, the director of the municipal administration is the head of the establishment subordinate to the municipal council and accountable to the mayor. The municipal administration is a municipal establishment which consists of structural and structural-territorial divisions—neighbourhoods (branch offices), civil servants and other public servants not included into structural divisions (Paragraph 1 of Article 29). Paragraph 4 of Article 29 of the same law provides that the municipal council shall decide on the establishment of the office of the deputy director of the administration or the substitution of the director of the administration. Servants of the municipal administration shall be accountable to the director of the municipal administration (Paragraph 8 of Article 29).

Since, under the Constitution, the executive bodies accountable to municipal councils may not be formed from among members of the municipal councils which establish them, the director of the municipal administration, his deputy, and a public servant of the municipal administration may not be members of the municipal council at the same time.

The legal regulation according to which the same person could be the director of the municipal administration, his deputy, a public servant of the municipal administration and, at the same time, a member of the municipal council would be in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

8.3.2. The Law on Local Self-Government provides for an institution of control of the municipality—the municipality controller who controls the use of the municipal budget and discharges the functions of the internal audit of the municipality (Paragraph 4 of Article 3, Paragraph 1 of Article 27). Paragraph 1 of Article 27 of this law provides that this institution shall be accountable to the municipal council.

For the discharge of the functions of the municipal control institution, the municipal council may establish (in case the number of residents of the municipality exceeds 30 thousand people, it must establish) an office of the controller of the municipality which is run by the controller of the municipality (Paragraph 2 of Article 27). Paragraph 1 of Article 28 of the same law provides that the controller of the municipality (the service of the controller of the municipality) shall supervise whether the use of the municipal budget funds, other property of the municipality and state property, transferred to the municipality, is lawful, expedient and effective.

As the controller of the municipality and a public servant of the service of the controller of the municipality are officials of the institutions accountable to the municipal council, they may not be members of the municipal councils at the same time.

The legal regulation according to which the same person could be the controller of the municipality or a public servant of the office of the controller of the municipality and, at the same time, a member of the municipal council would be in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

9. It has been mentioned that the legal regulation established by Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 means that a person elected to the municipal council during the elections to the municipal councils of the 2003–2007 term of office, whose office is incompatible with the office of a member of the municipal council and who has “decided to refuse the mandate of a member of the municipal council” under Article 3 of the Law, need not declare his decision to refuse the mandate of a member of the municipal council before the first sitting of the newly elected municipal council, and it need not be stated before the first sitting of the newly elected municipal council that the person in question has lost the mandate of a member of the municipal council; alongside, this legal regulation implies that the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration may keep their office and be members of the municipal council if they are elected as members of the municipal councils; such legal regulation means that the application of the provision of Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils is in fact postponed until the elections to the municipal councils of the next term of office.

10. Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 is in conflict with Article 4, Paragraph 4 of Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of Article 83, Article 99, Paragraphs 1 and 4 of Article 119, Paragraph 2 of Article 120, Paragraphs 1 and 2 of Article 123, and Paragraph 1 of Article 134 of the Constitution.

11. It has been mentioned that the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 was adopted as a reaction to the Constitutional Court’s ruling of 24 December 2002 which held that 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, that the Constitution consolidates the principle of the prohibition on a dual mandate, that 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.

11.1. Paragraphs 1 and 2 of Article 107 of the Constitution provide:

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.

The decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal.”

Thus, according to the Constitution, after the Constitutional Court recognises a law (or part thereof), or other act (or part thereof) of the Seimas, act of the President of the republic, act (or part thereof) of the Government to be in conflict with the Constitution, the institutions which had issued the corresponding act—the Seimas, the President of the Republic, and the Government—are prohibited from repeatedly establishing the legal regulation which has been recognised to be in conflict with the Constitution, by adopting corresponding laws and other legal acts afterwards. The legal regulation established by Paragraphs 1 and 2 of Article 107 of the Constitution also means that the power of the decision (ruling) of the Constitutional Court may not be overcome by means of a repeated adoption of laws or other acts of the Seimas, acts of the President of the Republic, and acts of the Government.

Paragraph 5 of Article 72 of the Law on the Constitutional Court establishes that the power of the Constitutional Court to recognise a legal act or part thereof as unconstitutional may not be overruled by means of a repeated adoption of a like legal act or part thereof.

It should also be noted that, under the Constitution, decisions (rulings) of the Constitutional Court are obligatory to everyone. Acts of the Constitutional Court are a source of law.

11.2. Under the Constitution, only the Constitutional Court is empowered to construe the Constitution officially. The Constitutional Court does so by deciding whether laws are not in conflict with the Constitution, whether other acts of the Seimas are not in conflict with the laws and the Constitution, whether acts of the President of the Republic and the Government are not in conflict with the laws and the Constitution. Paragraph 1 of Article 22 of the Law on the Constitutional Court provides that the Constitutional Court shall decide cases in essence by passing rulings.

The Constitutional Court has held that all constituent parts of a ruling of the Constitutional Court are interrelated, that a ruling of the Constitutional Court constitutes a whole (the Constitutional Court’s decision of 12 January 2000). Under Paragraph 2 of Article 56 of the Law on the Constitutional Court, a ruling of the Constitutional Court must state arguments upon which the ruling of the Constitutional Court is based. The principle of a state under the rule of law consolidated in the Constitution, implies, inter alia, the continuity of the jurisprudence (the Constitutional Court’s ruling of 12 July 2001). This means that the Constitutional Court, while deciding analogous constitutional disputes, observes the doctrine which was developed in previous cases and which discloses the content of the Constitution. While considering the compliance of laws and other legal acts (or parts thereof) with the Constitution, the Constitutional Court develops its concept of constitutional provisions which was presented in its previous rulings and other acts, while disclosing new aspects of the regulation established by the Constitution, which are necessary for the consideration of a particular case.

11.3. It has been mentioned that, according to the Constitution, rulings of the Constitutional Court are obligatory to everyone, that 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, and that the rulings of the Constitutional Court are final and not subject to appeal.

Taking account of the fact that all constituent parts of a ruling of the Constitutional Court are interrelated and constitute a whole, that a ruling of the Constitutional Court must state the arguments upon which that ruling of the Constitutional Court is based and present the concept of the provisions of the Constitution, the institutions that adopt the acts—the Seimas, the President of the Republic, and the Government—while adopting new, amending and supplementing already adopted laws and other legal acts, are bound by the concept of the provisions of the Constitution and other legal arguments presented in the reasoning of that ruling of the Constitutional Court.

11.4. In its ruling of 24 December 2002, the Constitutional Court stated that the Constitution consolidates the principle of the prohibition on a dual mandate, and that 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. According to the Constitution, members of the Seimas, the President of the Republic, members of the Government, judges, as well as state officials who, under the Constitution and laws, are empowered to control or supervise the activities of the municipalities, may not be members of municipal councils. It has also been stated in the above-mentioned Constitutional Court’s ruling 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.

It has been mentioned that if a person is elected as a member of the municipal council, the question of the legal status of this person must be decided before the first sitting of the newly elected municipal council: if the person has decided to be a member of the municipal council, then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost his office which is incompatible with the office of a member of the municipal council, but if the person has decided to remain in office and not to be a member of the municipal council then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost the mandate of a member of the municipal council. The law must establish the legal regulation, according to which the said question of the legal status of the person would be decided before the newly elected municipal council convenes to the first sitting.

11.5. It has been mentioned that the legal regulation established by Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 means that a person elected to the municipal council during the elections to the municipal councils of the 2003–2007 term of office, whose office is incompatible with the office of a member of the municipal council and who has “decided to refuse the mandate of a member of the municipal council” under Article 3 of the Law, need not declare his decision to refuse the mandate of a member of the municipal council before the first sitting of the newly elected municipal council, and it need not be stated before the first sitting of the newly elected municipal council that the person in question has lost the mandate of a member of the municipal council; alongside, this legal regulation implies that the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration may keep their office and be members of the municipal council if they are elected as members of the municipal councils; such legal regulation means that the application of the provision of Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils is in fact postponed until the elections to the municipal councils of the next term of office.

11.6. It has been held in this ruling of the Constitutional Court that Paragraph 2 of Article 4 of the Law is in conflict with Article 4, Paragraph 4 of Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of Article 83, Article 99, Paragraphs 1 and 4 of Article 119, Paragraph 2 of Article 120, Paragraphs 1 and 2 of Article 123, and Paragraph 1 of Article 134 of the Constitution.

The Constitutional Court notes that, upon establishing the said legal regulation by Paragraph 2 of Article 4 of the Law, the legislature not only disregarded the prohibition established by the Constitution for persons who discharge functions of the implementation of state authority, as well as for state officials who, according to the Constitution and laws, are empowered to control and supervise the activities of the municipalities, and officials of executive bodies accountable to the municipal councils, against holding their offices and, at the same time, being members of the municipal councils. In addition, after establishing the impugned provisions of Paragraph 2 of Article 4 of the Law, according to which persons who hold the office of the President of the Republic, a member of the Seimas, a member of the Government and those holding other offices specified in Paragraph 1 of Article 881 of the Law on Elections to the Municipal Councils may hold their office and, at the same time, be members of the municipal councils, if they are elected as members of the municipal councils, the Seimas adopted a law which disregarded the prohibition arising out of Paragraphs 1 and 2 of the Constitution against establishing repeatedly a like legal regulation by later adopted laws and other legal acts, which is incompatible with the concept of the provisions of the Constitution presented in the Constitutional Court’s ruling of 24 December 2002.

11.7. Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 4 of the Law is in conflict with Paragraphs 1 and 2 of Article 107 of the Constitution.

12. It has been mentioned that the petitioner requests an investigation into whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 is not in conflict with Paragraphs 1 and 2 of Article 5 of the Constitution.

12.1. Paragraphs 1 and 2 of Article 5 of the Constitution provide:

In Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute State power.

The scope of power shall be limited by the Constitution.”

12.2. After one has held that Paragraph 2 of Article 4 of the Law was in conflict with Paragraph 1 and 2 of Article 107 of the Constitution, it should be held alongside that the Seimas, upon adopting the Law, disregarded the concept of constitutional provisions concerning the incompatibility of the office of a member of the municipal council with other offices specified in the Constitution and laws, which was formulated in the Constitutional Court’s ruling of 24 December 2002, and, violating Paragraphs 1 and 2 of Article 107 of the Constitution, while attempting to overcome the power of the Constitutional Court’s ruling of 24 December 2002, exceeded the powers granted to it by the Constitution, as well as violated the constitutional principle of the separation of powers.

12.3. Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 4 of the Law is in conflict with Paragraphs 1 and 2 of Article 5 of the Constitution.

II

On the compliance of the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 with the constitutional principle of a state under the rule of law and Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

1. On 11 April 2003, the Government adopted the Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” wherein the following was established:

Conforming to Item 14 of Article 22 of the Republic of Lithuania’s Law on the Government (Official Gazette Valstybės žinios, 1994, No. 43-772; 1998, No. 41(1)-1131; 2000, No. 92-2830) and Item 1 of Paragraph 1 of Article 44 of the Republic of Lithuania’s Law on the Public Service (Official Gazette Valstybės žinios, 1999, No. 66-2130; 2002, No. 45-1708; No. 127-5750), the Government of the Republic of Lithuania has decided:

To dismiss Gediminas Paviržis from the office of the Chief of the Vilnius County as from the date indicated in his application, according to Item 1 of Paragraph 1 of Article 44 of the Law on Public Service of the Republic of Lithuania.”

2. The petitioner requests an investigation into whether the said government resolution is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

3. Article 94 of the Constitution prescribes:

The Government of the Republic of Lithuania:

1) shall administer the affairs of the country, protect the inviolability of the territory of the Republic of Lithuania, guarantee State security and public order;

2) shall execute laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of the President of the Republic;

3) shall co-ordinate the activities of the ministries and other establishments of the Government;

4) shall prepare a draft State Budget and present it to the Seimas; execute the State Budget and present an account on the fulfilment of the budget to the Seimas;

5) shall prepare draft laws and present them to the Seimas for consideration;

6) shall establish diplomatic relations and maintain relations with foreign states and international organisations;

7) shall discharge other duties prescribed to the Government by the Constitution and other laws.”

The powers of the Government arise out of the Constitution and laws. Everything that the Government performs, while implementing the powers established for it in the Constitution and laws, is the resolving of the affairs of state administration.

4. Article 95 of the Constitution provides:

The Government of the Republic of Lithuania shall resolve the affairs of State administration at its sittings by resolutions adopted by majority vote of all members of the Government. The Auditor General may also participate in the sittings of the Government.

Resolutions of the Government shall be signed by the Prime Minister and the Minister of an appropriate branch.”

Under Paragraph 1 of Article 95 of the Constitution, all questions of state administration which are categorised as belonging to the powers of the Government by the Constitution and laws, are decided by adoption of resolutions. A government resolution is a legal act whereby the Government resolves the affairs of state administration. The affairs of state administration may not be decided by the Government adopting an act of a different type (the Constitutional Court’s ruling of 29 November 2001).

Thus, the Constitution consolidates only one type of legal acts of the Government which it has the right to adopt while deciding the affairs of state administration, which is a government resolution.

5. Paragraph 1 of Article 123 of the Constitution provides: “In higher level administrative units, the administration shall be organised by the Government in accordance with the procedure established by law.”

It has been mentioned that local administration is fulfilment of state administration (i.e. the executive power) functions in particular localities, i.e. respective administrative units.

Under Paragraph 1 of Article 1 of the Governing of the County, the county is a higher territorial administrative unit of the Republic of Lithuania, the governing of which shall be organised by the Government through the county chief, the Ministries and other Government institutions; the government of the county is a constituent part of state administration. The county chief shall be appointed and dismissed from office by the Government upon presentation by the Prime Minister (Paragraph 1 of Article 4 of the Law on the Governing of the County, Item 14 of Article 22 of the Law on the Government).

It follows from the Constitution and the law that the county chief is a state official through which the Government organises state administration of a higher administrative unit (county), and his appointment and dismissal from office is an affair of state administration assigned to the competence of the Government, which may be decided by the Government adopting only one type of legal acts, i.e. government resolutions.

6. It has been mentioned that the petitioner requests an investigation into whether the impugned government resolution is not in conflict with the constitutional principle of a state under the rule of law.

The constitutional principle of a state under the rule of law is a universal one upon which the whole Lithuanian legal system as well as the Constitution are based. It is possible to detect the content of the principle of a state under the rule of law in various provisions of the Constitution

6.1. One of the basic elements of the principle of a state under the rule of law, which is consolidated in the Constitution, is legal certainty and clarity. The imperative of legal certainty and clarity presupposes certain obligatory requirements to legal regulation. Legal regulation must be clear and harmonious, legal norms must be formulated precisely and not contain any ambiguities. Legal normative acts must be published under established procedure and all entities of legal relations must have an opportunity to familiarise themselves with them.

6.2. The principle of a state under the rule of law also means that legal regulation may be amended only in pursuance with an earlier established procedure and without violating the principles and norms of the Constitution, it is necessary, inter alia, to follow the principle lex retro non agit (the Constitutional Court’s ruling of 12 July 2001).

6.3. One of the requirements of the constitutional principle of a state under the rule of law in the field of state administration is that the power of legal acts which decide the issues of state administration should be prospective.

It is noteworthy in the context of the case under consideration that until a legal act concerning the dismissal from office of a particular state official comes into force, this official enjoys and discharges the powers assigned to him by the Constitution, laws, and other legal acts.

6.4. It has been held in the Constitutional Court’s ruling of 29 November 2001 that an essential element of the principle of a state under the rule of law is that only published legal acts are effective. Law may not be non-public. The constitutional requirements that only published legal acts be effective and that they be published are an important precondition of legal certainty. Under the Constitution, the Government, while resolving affairs of state administration, must always adopt resolutions, and they must be published regardless of whether the legal acts adopted by the Government are normative or individual, as well as regardless of the fact as to what entities or circles of entities they are meant.

7. It has been mentioned that it was decided by the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 to dismiss G. Paviržis from the office of the Chief of the Vilnius County as from the date indicated in his application.

It is clear from the case material that in the application of G. Paviržis he requests his dismissal from the office of the Chief of the Vilnius County as from 8 April 2003.

Thus, the formula “to dismiss Gediminas Paviržis from the office of the county chief as from the date indicated in his application” of the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 means that, under this resolution, G. Paviržis was dismissed from the office of the chief of the Vilnius county as from 8 April 2003.

8. It is noteworthy that the impugned government resolution was adopted on 11 April 2003 and published in the official gazette Valstybės žinios on 16 April 2003.

Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania” provides that the resolutions by the Government shall come into force following the day, when signed by the Prime Minister and the appropriate minister, they shall be published in the official gazette Valstybės žinios, provided a later date of their coming into force has not been established by the resolution itself.

Thus, the government resolution establishing that G. Paviržis is dismissed from the office of the Chief of the Vilnius County as from the date indicated in his application (i.e. as from 8 April 2003), came into force on 17 April 2003.

9. G. Paviržis was dismissed from the office of the Chief of the Vilnius County by the impugned government resolution before the government resolution concerning his dismissal from office was adopted, published and came into force. It needs to be noted in the context of the case under consideration that, though the impugned government resolution itself came into force from 17 April 2003, i.e. on the next day after it was published in the official gazette Valstybės žinios, the power of the content of this government resolution was retrospective.

10. It has been mentioned that the impugned government resolution provides that G. Paviržis is dismissed from the office of the Chief of the Vilnius County “from the date indicated in his application”. Thus, the government resolution itself does not specify a concrete date of the dismissal of G. Paviržis from the office of the Chief of the Vilnius County. Such formulation of the impugned resolution, according to which G. Paviržis is dismissed from the office of the Chief of the Vilnius County “as from the date indicated in his application” is legally deficient, because it is not clear from this government resolution, as from what concrete date the powers of G. Paviržis, Chief of the Vilnius County, were terminated.

11. The representative of the Government, a party concerned, bases her arguments concerning the conformity of the impugned government resolution with the constitutional principle of a state under the rule of law and Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania” on the fact that the Government can decide the question of dismissal of the county chief from office by adopting a so-called protocol decision (i.e. a decision, which is formalised by entering it into the minutes of the government sitting). According to the representative of the Government, G. Paviržis was dismissed from the office of the Chief of the Vilnius County by the “protocol decision” of 9 April 2003.

These arguments of the representative of the Government, a party concerned, are legally groundless.

The minutes of the 9 April 2003 government sitting contain the following entry: “To take account of information provided by J. Bernatonis, the Minister of the Interior, that G. Paviržis, the Chief of the Vilnius County has submitted an application to the Prime Minister requesting dismissing him from the office of the Chief of the Vilnius County, because he had been elected to the municipal council of the Vilnius city. A draft resolution of the Government of the Republic of Lithuania formalising the said dismissal must be presented in the next sitting of the Government of the Republic of Lithuania.”

Thus, the said minutes of the government sitting specify only that the Government takes account of the presented information concerning the application of G. Paviržis on the request to dismiss him from the office of the Chief of the Vilnius County, as well as that a draft resolution, which will formalise the dismissal of G. Paviržis, will be presented in the next government sitting.

It has been mentioned that the county chief is a state official through which the Government organises state administration of a higher administrative unit (a county), and his appointment and dismissal from office is an affair of state administration assigned to the competence of the Government which, according to the Constitution, may be decided by the Government adopting a resolution only.

Therefore, the decision of the Government concerning dismissal of G. Paviržis from the office of the Chief of the Vilnius County ought to have been adopted only observing the requirements established by the Constitution, i.e. such a decision must be adopted by government resolution in a government sitting by majority vote of all members of the Government and signed by the Prime Minister and a Minister of an appropriate branch.

12. Taking account of the arguments set forth, it should be concluded that the provision “as from the date indicated in his application” established by the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 is in conflict with the constitutional principle of the state under the rule of law.

13. The petitioner requests an investigation into whether the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 is not in conflict with Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

13.1. Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania” provides: “The resolutions by the Government shall come into force following the day, when signed by the Prime Minister or the appropriate minister, they shall be published in the official gazette Valstybės žinios, provided a later date of their coming into force has not been established by the resolution itself.”

13.2. It has been mentioned that though the impugned government resolution itself came into force from 17 April 2003, i.e. on the next day after its publication in the official gazette Valstybės žinios, the power of the content of this government resolution was retrospective.

13.3 Taking account of these arguments, it should be concluded that the provision “as from the date indicated in his application” established by the Government Resolution (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 is in conflict with Paragraph 1 of Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

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 gives the following

ruling:

1. To recognise that Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 881 is in conflict with Article 4, Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59, Paragraphs 1 and 2 of Article 60, Paragraph 1 of Article 83, Article 99, Paragraphs 1 and 2 of Article 107, Paragraphs 1 and 4 of Article 119, Paragraph 2 of Article 120, Paragraphs 1 and 2 of Article 123, and Paragraph 1 of Article 134 of the Constitution of the Republic of Lithuania.

2. To recognise that the provision “as from the date indicated in his application” established by the Resolution of the Government of the Republic of Lithuania (No. 457) “On the Dismissal of the Chief of the Vilnius County” of 11 April 2003 is in conflict with the constitutional principle of a state under the rule of law and Paragraph 1 of Article 9 of the Republic of Lithuania’s Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.

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

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

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas