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On the interpretation of the Constitutional Court’s ruling of 30 May 2003

Case No. 21/2003

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT’S RULING OF 30 MAY 2003

 

13 February 2004

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

Seimas member Petras Papovas and Pranas Žukauskas, the chief specialist of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, the party concerned, in case 21/2003, who were

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 11 February 2004, in its public hearing, considered the petition of Seimas member Petras Papovas requesting the construction of the following provisions of the Constitutional Court’s 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 Releasing the Chief of the Vilnius County from Office’ 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’” of 30 May 2003:

1) “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” (Item 8.1 of Section I of the part of reasoning of the ruling);

2) “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” (Item 8.3.2 of Section I of the part of reasoning of the ruling).

The Constitutional Court

has established:

I

1. On 24 December 2002, in case 49/2000, the Constitutional Court passed the 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” (Official Gazette Valstybės žinios, 2003, No. 19-828).

2. On 30 May 2003, in case 21/2003, the Constitutional Court passed the 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 Releasing the Chief of the Vilnius County from Office’ 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’” (Official Gazette Valstybės žinios, 2003, No. 53-2361; hereinafter also referred to as the Ruling).

3. Seimas member P. Papovas who, in case 49/2000, used to be a representative of the petitioner, a group of Seimas members, and who, in case No. 21/2003, used to be a representative of the party concerned, the Seimas, in his petition of 6 January 2004 requests the Constitutional Court to construe certain provisions of the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003.

4. On 26 January 2004, the Constitutional Court adopted a decision concerning the dividing of the petition of P. Papovas of 6 January 2004 into two independent petitions: a petition to construe certain provisions of the Constitutional Court’s ruling of 24 December 2002, and a petition to construe certain provisions of the Constitutional Court’s ruling of 30 May 2003.

5. On 11 February 2004, the Constitutional Court adopted the Decision “On the Construction of the Constitutional Court’s ruling of 24 December 2002” in which it construed certain provisions of the Constitutional Court’s ruling of 24 December 2002.

6. Seimas member P. Papovas requests the construction of the following provisions of the Constitutional Court’s ruling of 30 May 2003:

1) “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” (Item 8.1 of Section I of the part of reasoning of the Ruling);

2) “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” (Item 8.3.2 of Section I of the part of reasoning of the Ruling).

II

At the Constitutional Court’s hearing, P. Papovas virtually reiterated his request for the construction of certain provisions of the Ruling and explained the reasons set forth in his petition.

The Constitutional Court

holds that:

I

1. A ruling of the Constitutional Court is integral. Its operative part is based upon the arguments of the reasoning part (statement). Therefore, while construing its ruling, the Constitutional Court is bound both by the content of the operative part and that of reasoning of its ruling.

The decision adopted concerning the construction of a ruling of the Constitutional Court is inseparable from that ruling of the Constitutional Court (the Constitutional Court’s decision of 12 January 2000).

2. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content.

3. The principle of a state under the rule of law established in the Constitution implies, inter alia, the continuity of jurisprudence (the Constitutional Court’s ruling 12 July 2001).

In this context, it should be noted that, on 11 February 2004, the Constitutional Court adopted the Decision “On the construction of the Constitutional Court’s ruling of 24 December 2002” in which it construed certain provisions of the Constitutional Court’s ruling of 24 December 2002.

II

1. Seimas member P. Papovas requests the construction of the provision “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” of the Ruling (Item 8.1 of Section I of the part of reasoning of the Ruling).

1.1. It is clear from the petition that it requests the construction of which state officials, according to the provision “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” of Item 8.1 of Section I of the part of reasoning of the Ruling, should be categorised as officials enjoying powers to control or supervise activities of municipalities and who, due to this, cannot be municipal council members.

1.2. The formula “powers to control or supervise activities of municipalities” was used in the Constitutional Court’s ruling of 24 December 2002, while it was construed in the Constitutional Court’s decision of 11 February 2004 that the formula “powers to control and supervise municipal activities” means that respective state officials (servants and other persons irrespective of how they are referred to in laws; hereinafter—state officials) have the right to adopt decisions upon which depend the adoption and implementation of decisions of municipal councils within their competence defined by the Constitution and laws. Under the Constitution, members of municipal councils may not be unequal according to their legal status. This constitutional requirement would be violated if a person who, under the Constitution and laws, enjoyed powers to adopt the decisions that might determine the adoption and implementation of decisions of municipal councils within the competence defined in the Constitution and laws. It is due to this that state officials who, under the Constitution and laws, enjoy powers to control and supervise municipal activities cannot, at the same time, be members of municipal councils as well.

It was also held in the Constitutional Court’s decision of 11 February 2004 that the state officials who enjoy powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises (e.g., in the areas of the environment, sanitation and hygiene, education, labour security, economy and trade, construction, tax administration, clerical work and many others) cannot be categorised as state officials who have the right to adopt decisions upon which the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws would be dependent. Such state officials may hold their office and be municipal council members at the same time. While deciding whether certain state officials should be categorised as state officials who have the right to adopt decisions upon which the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws would be dependent, and who, due to this, cannot be municipal council members at the same time, one must assess in every particular case the content of powers established to them in the Constitution and laws.

1.3. Taking account of the arguments set forth, it should be held that the provision “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” of Item 8.1 of Section I of the part of reasoning of the Constitutional Court’s ruling of 30 May 2003 means, inter alia, that the state officials (servants and other persons irrespective of how they are referred to in laws) who, under the Constitution and laws, enjoy the powers to adopt the decisions upon which belong the adoption and implementation of the decision of municipal councils within the competence defined in the Constitution and laws, may not be members of municipal councils at the same time; this statement does not mean that state officials who enjoy powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises cannot be members of municipal councils at the same time.

2. Seimas member P. Papovas requests the construction of the provision “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” of the Ruling (Item 8.3.2 of Section I of the part of reasoning of the Ruling).

2.1. It is clear from the petition that it requests the construction of whether, according to the provision “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” of the Ruling, heads of municipal establishments maintained from the budget and those of public establishments, enterprises and organisations established by municipalities may not be members of municipal councils at the same time.

2.2. 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).

When implementing the right of self-government guaranteed by the Constitution, municipal councils, under the laws, may establish municipal institutions, establishments and enterprises.

In its decision of 11 February 2004, the Constitutional Court held that the legislature enjoys the discretion to establish, by means of a law, as to who (whether municipal councils or executive bodies accountable to them) has the right to adopt decisions concerning appointment of heads of municipal establishments and enterprises, and supervision of these establishments and enterprises: it has the right to stipulate that these decisions are either adopted by municipal councils, or that they are adopted by executive bodies accountable to the municipal councils, or that these decisions are adopted by municipal councils, but that the latter may transfer the right to adopt such decisions to the executive bodies accountable to the municipal councils; in this case the powers of municipal councils to transfer the said rights to the executive bodies accountable to the municipal councils must be directly indicated in the law. After the law establishes the powers of municipal councils to adopt decisions concerning transfer of the supervision over municipal establishments and enterprises to the executive bodies accountable to the municipal councils, one cannot deny the right of municipal councils to supervise these establishments and enterprises by themselves.

If the laws provide that heads of municipal establishments and enterprises or their officials are accountable to municipal councils for the activities of their or other respective establishments and enterprises, then they may not be members of the municipal councils at the same time. Otherwise, the right of municipal councils (as the representation of territorial communities) to supervise the activity of the establishments and enterprises (their heads and officials) that are accountable to them would be distorted, since there would emerge a legal situation where the heads or officials of the establishments and enterprises accountable to the municipal councils supervised them (their own activity) by themselves, and were accountable to themselves.

2.3. Taking account of the arguments set forth, it should be concluded that the provision “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” of Item 8.3.2 of Section I of the part of reasoning of the Constitutional Court’s ruling of 30 May 2003 means that if the laws provide that heads of municipal establishments and enterprises or their officials are accountable to municipal councils for the activities of their or other respective establishments and enterprises, then they may not be members of the municipal councils at the same time.

Conforming to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To construe that the following provisions of the Constitutional Court’s 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 Releasing the Chief of the Vilnius County from Office’ 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’” of 30 May 2003:

1) the provision “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” of Item 8.1 of Section I of the part of reasoning means, inter alia, that the state officials (servants and other persons irrespective of how they are referred to in laws) who, under the Constitution and laws, enjoy the powers to adopt the decisions upon which belong the adoption and implementation of the decision of municipal councils within the competence defined in the Constitution and laws, may not be members of municipal councils at the same time; this statement does not mean that state officials who enjoy powers to conduct only organisational, technical etc. control or supervision over the executive bodies accountable to municipal councils, and over municipal establishments or enterprises cannot be members of municipal councils at the same time.

2) the provision “<…> officials of the institutions accountable to the municipal council <…> may not be members of the municipal councils at the same time” of Item 8.3.2 of Section I of the part of reasoning means that if the laws provide that heads of municipal establishments and enterprises or their officials are accountable to municipal councils for the activities of their or respective establishments and enterprises, then they may not be members of the municipal councils at the same time.

Justices of the Constitutional Court:                                                Armanas Abramavičius

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas