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On the compliance of the Republic of Lithuania’s Law Supplementing and Amending Articles 86, 87 of the Law on Elections to Municipal Councils and Supplementing It with Article 88-1 with the Constitution of the Republic of Lithuania

Case No 23/2003

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE 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

19 January 2005
Vilnius

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

The court reporter—Daiva Pitrėnaitė

Seimas member Raimondas Šukys and the advocate Vaidotas Vaičius, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Pranas Žukauskas, chief specialist of the Law Department of the Office of the Seimas of the Republic of Lithuania, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 3 January 2005, considered case No. 23/2003 subsequent to the petition of a group of members of the Seimas, the petitioner, requesting an investigation into:

1) whether 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 not in conflict, according to the procedure of its adoption, with Paragraph 1 of Article 69 of the Constitution of the Republic of Lithuania;

2) 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 consolidating that “the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the mandate of the municipal council member by the persons elected as a municipal council member before the first sitting of the municipal council indicated in Article 3 of this Law shall be applied from the elections to municipal councils for the next term of office”, is not in conflict, by its content, with the principle of a state under the rule of law set in the Preamble to the Constitution of the Republic of Lithuania, Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania;

3) whether 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 to the extent of its regulation is not in conflict with the principle of a state under the rule of law set in the Preamble to the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petitioner—a group of members of the Seimas—applied to the Constitutional Court with a petition requesting an investigation into:

1) whether 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) is not in conflict, according to the procedure of its adoption, with Paragraph 1 of Article 69 of the Constitution;

2) 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 consolidating that “the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the mandate of the municipal council member by the persons elected as a municipal council member before the first sitting of the municipal council indicated in Article 3 of this Law shall be applied from the elections to municipal councils for the next term of office”, is not in conflict, by its content, with the principle of a state under the rule of law set in the Preamble to the Constitution, Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article 119 of the Constitution

3) whether 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 to the extent of its regulation is not in conflict with the principle of a state under the rule of law set in the Preamble to the Constitution.

II

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

1. 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 while reacting to the Constitutional Court’s ruling of 24 December 2002, therefore, as the petitioner claims, according to the provisions of chapter twenty eight1 of the Statute of the Seimas (namely Articles 1811, 1812 and Paragraph 1 of Article 1813) the Committee on Legal Affairs of the Seimas or, under its offering, another committee of the Seimas had the right to prepare and discuss a draft of the impugned law as the principal committee. But in the sitting of the Seimas, without the offering of the Committee on Legal Affairs, the Committee on State Administration and Local Authorities was assigned as the principal committee. According to the petitioner, this violation of the Statute of the Seimas had the essential impact upon the content of the law and its legal quality.

According to Paragraph 1 of Article 69 of the Constitution, laws shall be adopted in the Seimas in accordance with the procedure established by law. The procedure of adoption of laws is set by the Statute of the Seimas, therefore, in the opinion of the petitioner, violation of its provisions means that Paragraph 1 of Article 69 of the Constitution has been violated as well. Thus, the petitioner assumes that the impugned law according to the procedure of its adoption is in conflict with Paragraph 1 of Article 69 of the Constitution.

2. It is stated in the Constitutional Court’s ruling of 24 December 2002 that the principle of the prohibition on a dual mandate is set in the Constitution, that the same persons may not at the same time discharge the functions while exercising state power and be members of municipal councils through which the rights of self-government are implemented, that, under the Constitution, state officials who, according to the Constitution and the laws, enjoy the powers of controlling or supervising activities of municipalities, may not be members of municipal councils, that, pursuant to the Constitutions and laws, if a person performing the functions while exercising state power or a state official who, according to the Constitution and the laws, enjoys the powers of controlling or supervising activities of municipalities, is elected to the post of a member of the municipal council, he must decide whether to continue with his former duties or be a member of the municipal council before the first sitting of the newly elected municipal council.

It is established in Paragraph 2 of Article 4 of the impugned law that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the mandate of a council member by the person elected as a municipal council member before the first sitting of the municipal council shall be applied from the elections of the municipal council of the next term of office. According to the petitioner, the provision is set 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 which by its content is in conflict with Paragraph 2 of Article 119 of the Constitution and the principle of a state under the rule of law; in addition, when adopting this provision, the legislature exceeded its competence and violated Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, and Paragraphs 1 and 2 of Article 107 of the Constitution.

3. Article 3 of the Law provides that “the duties of a municipal council member are incompatible <...> with duties of state official who, under the Constitution and laws, has the powers to control or supervise the activity of municipalities<...>”. However, the legislature did not establish any final list of officials who have the power to control and supervise the activity of municipalities. In the opinion of the petitioner, the lack of regulation should be treated as a contrary legal regulation and may serve as grounds for recognising the legal act to be in conflict with the Constitution. The petitioner has doubts whether the impugned law to the extent of its regulation is not in conflict with the principle of a state under the rule of law consolidated in the Preamble to the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the party concerned, the representatives of the petitioner, who were the members of the Seimas P. Papovas and P. Žukauskas.

1. In the explanations of the member of the Seimas P. Papovas it is stated that the Constitutional Court’s ruling of 24 December 2002 was passed in the case which did not include consideration of the issues on the compliance of the provisions of the Law on Elections to Municipal Councils with the Constitution.

According to the representative of the party concerned, the said Constitutional Court’s ruling was passed after the elections to municipal councils. Before this ruling became effective and till the next elections to municipal councils members of Seimas, county chiefs, their deputies could serve also as members of municipal councils; when participating in the elections to municipal councils they expected to become members of these municipal councils and undertook certain obligations to their electorate. In the opinion of P. Papovas, in this case the principle of legitimate expectations should be followed.

In the opinion of the representative of the party concerned, the provision of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils, indicating that “the elected member of the municipal council who decided to refuse the mandate of a council member not later than 10 days before the first sitting of the municipal council, personally hands in or sends a notary certified application regarding refusal of the municipal council mandate to the Central Electoral Commission”, defines the procedure and time of refusal of the municipal council mandate before the first sitting of the municipal council. According to P. Papovas, the provision set in Paragraph 2 of Article 4 of the 881 that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusing of the mandate of a council member by a person elected as a member of the municipal council before the first sitting of the municipal council shall be applicable from the elections to municipal councils for the next term of office did not deny an opportunity for a person elected as a municipal council member, upon his decision, to refuse the mandate of a municipal council member before the first sitting of the municipal council; in addition, this provision is of one-off nature. The representative of the Seimas stressed that having not refused the duties of the municipal council member before the first sitting of the municipal council, the Central Electoral Commission has the grounds to recognise the powers of the municipal council member terminated not later than within 15 days. Thus, according to P. Papovas, the Seimas, when adopting the provision not to apply the norms of Paragraph 2 of Article 881 to the municipal council members of the 2003–2007 term of office regarding refusal by the person elected as a municipal council member of the mandate of a member of this council before the first sitting of the municipal council, basically did not deny an opportunity to do this on a voluntary basis, nor did it deny the constitutional principle of the prohibition on a dual mandate and the prohibition on being a municipal council member and at the same time discharging the duties incompatible with the duties of a council member.

2. According to P. Žukauskas, the provisions of chapter twenty eight1 of the Statute of Seimas on the implementation of rulings of the Constitutional Court were linked with the amendment of the legal act ruled to be in conflict with the Constitution. Paragraph 1 of Article 1812 of the Statute of the Seimas provides that “the Committee on Legal Affairs of the Seimas or, following its offering, another committee of the Seimas shall prepare the draft amendment of the legal act (or part of it) which was found by the Constitutional Court to be in conflict with the Constitution of the Republic of Lithuania“. In the opinion of P. Žukauskas, when preparing, considering and adopting the impugned law, the provisions of chapter twenty eight1 of the Statute of the Seimas should not have been applied because this law was adopted not to amend the part of the legal act which had been ruled to be in conflict with the Constitution.

According to P. Žukauskas, the request of the petitioner for ruling all the impugned legal act, to the extent of its regulation, to be in conflict with the Constitution is groundless because the arguments were presented regarding only one part of the said legal act; in addition, in the opinion of the representative of the party concerned, the petitioner failed to disclose the essence of the non-compliance with the Constitution. In the opinion of the representative of the Seimas, in view of brevity and exactness of the legal act, by the impugned law one did not intend to define a final list of officials enjoying the power to control or supervise activities of municipalities; the list of officials presented in the law is of exemplary nature, meanwhile, the functions, rights and duties of each official are defined by individual acts of law, and the regulation set within them is sufficient to establish and assess the content and scope of public officials’ powers to supervise and control activities of municipalities.

IV

1. At the hearing of the Constitutional Court, the representative of the petitioner who were the member of the Seimas R. Šukys and the advocate V. Vaičius, due to the fact that the issue of 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 the Constitution had already been solved by the Constitutional Court’s ruling of 30 May 2003, requested dismissing this part of the case.

At the Constitutional Court’s hearing, the representatives of the petitioner also specified their position regarding the compliance of the impugned law with the Constitution according to the scope of regulation. Following the provision of the Constitutional Court’s decision of 13 February 2004 that “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 the powers established to them in the Constitution and laws”, they stated that a final list of such officials should not be established; thus, the reasons regarding the non-compliance of the impugned law to the extent of its regulation with the constitutional principle of a state under the rule of law were groundless. At the same time the representatives of the petitioner requested the Constitutional Court to investigate whether Paragraph 1 Article 881 (wording of 25 March 2004) of the Law on Elections to Municipal Councils which consolidates a final list of the duties which are incompatible with the duties of a municipal council member is not in conflict with the principle of a state under the rule of law.

What concerns other issues, the representatives of the petitioner repeated the reasons stated in the petition of the petitioner.

2. During the hearing of the Constitutional Court, P. Žukauskas, the representative of the party concerned, requested dismissing the part in the case regarding 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 the Constitution, because Paragraph 2 of Article 4 of the Law was ruled to be in conflict with the Constitution by the Constitutional Court’s ruling of 30 May 2003, and by the law of 27 May 2003, which became effective on the 13 June 2004, it was abolished.

As regards other issues, P. Žukauskas repeated the reasons stated in his written explanations.

The Constitutional Court

holds that:

I

1. The petitioner—a group of members of the Seimas—applied to the Constitutional Court requesting an investigation into:

1) whether 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, according to the procedure of its adoption, with Paragraph 1 of Article 69 of the Constitution;

2) 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 consolidating that “the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the mandate of the municipal council member by the persons elected as a municipal council member before the first sitting of the municipal council indicated in Article 3 of this Law shall be applied from the elections to municipal councils for the next term of office”, is not in conflict, by its content, with the principle of a state under the rule of law set in the Preamble to the Constitution, Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article 119 of the Constitution;

3) whether 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 to the extent of its regulation is not in conflict with the principle of a state under the rule of law set in the Preamble to the Constitution.

2. The Seimas adopted the Republic of Lithuania’s Law on Elections to Municipal Councils on 7 July 1994. This law became effective on 13 July 1994.

On 23 December 1996, the Seimas adopted the Law on Amending the Law on Elections to Municipal Councils of the Republic of Lithuania, and in its Article 1 set forth the new wording of the Law on Elections to Municipal Councils.

On 19 October 1999, the Seimas adopted the Law on Amending the Law on Elections to Municipal Councils of the Republic of Lithuania, and in its Article 1 a new wording of the Law on Elections to Municipal Councils was repeatedly set forth.

The Law on Elections to Municipal Councils (wording of 19 October 1999) was amended and/or supplemented a number of times.

Until 28 January 2003, when 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, the duties incompatible with the duties of a municipal council member were not established in the Law on Elections to Municipal Councils.

3. On 24 December 2002, 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”.

The Constitutional Court’s ruling of 24 December 2002 held, inter alia, that, under the Constitution, the same persons may not discharge the functions in the implementation of state power 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. The said Constitutional Court’s ruling also held that in cases when a legal situation occurs where a person discharging the functions of state power, 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 was also held that, 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 said Constitutional Court’s ruling recognised, inter alia, that Paragraph 1 of Article 18 (wording of 12 October 2000) of the Law on Local Self-Government to the extent that it provided that the municipal board is formed from among the members of the municipal council was in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution, also, that Item 1 (wording of 12 October 2000) of Paragraph 1 of Article 21 of the Law on Local Self-Government to the extent that it provided that the mayor shall determine and draw up agendas for the municipal council sittings and submit draft decisions of municipal council, convene sittings of the municipal council and chair them, coordinate the activity of committees and commissions of the municipal council, sign decisions of the municipal council and the minutes of the sittings of the council that he has chaired, was in conflict with Paragraph 2 of Article 5 and Paragraphs 1 and 4 of Article 119 of the Constitution.

The Constitutional Court did not investigate the compliance of the Law on Elections to Municipal Councils with the Constitution in the case in which the ruling of 24 December 2002 was passed.

In its ruling of 24 December 2002, the Constitutional Court also held that the provisions of the Law on Local Self-Government, which were ruled by the Court in the said ruling to be in conflict with the Constitution, were systematically interrelated with many other provisions of the same law. Under the Constitution and the Law on the Constitutional Court, a law (or part thereof) may not be applied from the day of official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. The Constitutional Court held that if the said Constitutional Court’s ruling had been officially published immediately after its public pronouncement in the Constitutional Court’s hearing, a vacuum would have emerged in the legal regulation concerning local self-government, which would have disrupted the functioning of local self-government mechanism and state administration in essence. In order to remove this vacuum in legal regulation, a certain period of time was necessary. Therefore, the Constitutional Court ruled that its ruling of 24 December 2002 shall be officially published on 25 February 2003.

The said Constitutional Court’s ruling was pronounced at the Constitutional Court’s hearing of 24 December 2002, was officially published in the official gazette “Valstybės žinios”, and became effective on 25 February 2003.

4. On 16 January 2003, in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat, the Republic of Lithuania Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) was presented by the member of the Seimas P. Papovas. The explanatory note of this draft indicated, inter alia, that “the goal of the proposed draft laws is to remove by the right of legislative initiative the gap in the normative regulation after the Constitutional Court on 24 December 2002 construed that <...> pursuant to the principle of the prohibition on a dual mandate set in the Preamble to the Constitution, the same persons may not, at the same time, discharge the functions while exercising state power and be members of municipal councils through which the right of self-government is implemented”.

5. On 20 January 2003, the Legal Department of the Office of the Seimas presented the conclusion on the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222), in which it drew attention to certain legal technique inaccuracies of this draft. These conclusions of the Legal Department of Law of the Office of the Seimas were registered in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat on 21 January 2003.

6. During the 21 January 2003 morning sitting the member of the Seimas P. Papovas presented the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222). At this sitting of the Seimas it was decided to postpone the presentation of the said draft law till the day sitting of the Seimas of the same day, and during the evening sitting of the Seimas it was decided to make another postponement until the 23 January 2003 Seimas sitting.

7. During the 23 January 2003 Seimas sitting the presentation procedure of the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) was continued, and after the presentation the Seimas decided to start the consideration procedure of the said draft law. During this sitting of the Seimas, upon the proposal of the Seimas Assembly of Elders, the Committee on State Administration and Local Authorities of the Seimas was appointed the principal committee to consider the said draft law, while the Committee on Legal Affairs of the Seimas—the supplementary committee. The date of consideration of this draft law in the Seimas was also appointed, which was 28 January 2003.

8. In its meeting of 27 January 2003, the Committee on Legal Affairs of the Seimas considered the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) and suggested that the principal committee improve it following the notes of the Legal Department of Law of the Office of the Seimas.

9. On 27 January 2003 the proposals regarding the considered draft law presented by the members of the Seimas J. Razma, A. Salamakinas, and N. Steiblienė were registered in the Seimas.

10. The Committee on State Administration and Local Authorities of the Seimas in its meeting of 27 January 2003 considered the improved Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) and approved of it. On 28 January 2003, the said improved draft law, now called the Republic of Lithuania Draft 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 registered in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat and was given reference number IXP-2222(2SP).

11. On 28 January 2003, the Legal Department of the Office of the Seimas presented its conclusions on the Draft 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 (No. IXP-2222(2SP). On the same day, these conclusions of the Legal Department of the Office of the Seimas were registered in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat. It drew attention to certain legal technique inaccuracies of the said draft law, it was also stated that the provision of the Draft 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 (No. IXP-2222(2SP), saying that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding refusal of the mandate of a council member before the first sitting of the municipal council by a person elected as municipal council member contradicted the Constitutional Court’s ruling of 24 December 2002. In the said conclusions the Legal Department of the Office of the Seimas, following Paragraph 5 of Article 72 of the Law on the Constitutional Court, also indicated that the power of the Constitutional Court to rule a legal act or part thereof unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof.

12. During the Seimas sitting of 28 January 2003, the consideration 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 (No. IXP-2222(2SP), improved by the Committee on State Administration and Local Authorities of the Seimas, was continued. During this sitting the proposals of the members of the Seimas J. Razma, A. Salamakinas, and N. Steiblienė were considered and several of the said proposals were approved of by the Seimas.

During the Seimas sitting of 28 January 2003, on the proposal of the Speaker of the Seimas, it was decided to continue consideration of this draft law under urgency procedure.

13. On 28 January 2003 the Seimas adopted 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, in which the following was established:

Article 1. Supplementation of Article 86 with Item 9

To supplement Article 86 with Item 9:

9) if the council member takes the duties or fails to refuse the duties incompatible with the duties of a municipal council member.’

Amendment of Item 1 of Article 87

In Paragraph 1 of Article 87 after the word ‘discontinued’ to include the words ‘or having lost the mandate of a council member’ and arrange this paragraph as follows:

1. ‘Having found the powers of a council member as discontinued or having lost the mandate of a council member, a vacancy appears among the council members. It can be occupied in the following way: the first candidate from the post-elective candidate list, according to which the former council member was elected, who failed to get the mandate of a council member, shall become a council member. If the said candidate list provides no candidates failing to get the mandate of a council member, the mandate of a council member shall be passed over to other list according to the candidate list order, formed after the election for distribution of mandates by the method of remainder, i.e. the first list after the last list to receive the mandate in this order, and the first candidate who failed to get the mandate of a council member of the new list shall become the council member. The Central Electoral Commission shall decide on acknowledgement of the mandate of a council member within 7 days after the vacancy appears.’

Article 3. Supplementation of the law with Article 881

To supplement the Law with Article 881:

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

1.1. The duties of a council member are incompatible with the duties of the President of the Republic, a member of the Seimas, a member of the Government, or with the duties of a state official who, under the Constitution and laws, enjoys the powers to control or supervise the activities of municipalities, also, with the duties of a county chief, municipal controller or official of the service of the municipal controller, with the duties of the director of municipal administration or a public servant of municipal administration.

2. If the person discharging the duties indicated in Paragraph 1 of this Article is elected a municipal council member or while being a municipal council member he discharges the duties or takes the duties indicated in Paragraph 1 of this Article, he must decide and refuse either these duties or the mandate of a municipal council member. The elected council member having decided to refuse the mandate of a council member within 10 days before the day of the first sitting of the municipal council shall hand in a notary approved application regarding refusal of the mandate of a municipal council member to the Central Electoral Commission personally or send it by mail. Upon reception of this application the Central Electoral Commission within 7 days before the day of the first municipal council sitting shall decide on the loss of the mandate of a municipal council member and acknowledgement of the mandate to a new council member. The candidates from the post-elective candidate list who decided to refuse the mandate of a municipal council member shall within 7 days before the day of the first municipal council sitting present the applications regarding refusal of the mandate of a municipal council member to the Central Electoral Commission. Under the procedure indicated in Articles 86 and 87 of this Law, the Central Electoral Commission shall decide regarding the person who has the powers of a council member and is discharging or who has taken duties which are incompatible with the duties of the municipal council member.’

Article 4. Final provisions

1. This Law shall become effective as of 25 February 2003.

2. The norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding refusal of the mandate of a municipal council member before the first municipal council sitting set forth in Article 3 of this Law shall be applicable from the municipal council elections of the next term of office.”

14. On 30 May 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 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’”.

The said Constitutional Court’s ruling holds, inter alia, 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 while reacting to the Constitutional Court’s ruling of 24 December 2002.

In its ruling of 30 May 2003, the Constitutional Court recognised, inter alia, 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 was 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.

The Constitutional Court’s ruling of 30 May 2003 was officially published in the official gazette “Valstybės žinios” and became effective on 31 May 2003.

15. On 27 May 2003 the Seimas adopted the Republic of Lithuania’s Law on Amending 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, by Article 1 of which Paragraph 2 of Article 4 of the Law was recognised as no longer valid. The Republic of Lithuania’s Law on Amending 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 was officially published in the official gazette “Valstybės žinios” and became effective on 13 June 2003.

16. On 25 March 2004, the Seimas adopted the Law on Amending Articles 35, 86 and 881 of the Law on Elections to Municipal Councils by Article 3 whereof it amended Article 881 of the Law on Elections to Municipal Councils (wording of 28 January 2003) and arranged its Paragraph 1 as follows: “The duties of a council member are incompatible with the duties of the President of the Republic, a member of the Seimas, a member of the Government, a county chief or a deputy county chief, the representative of the Government in a county, the duties of the Auditor General or his deputies. In addition, the duties of a council member are incompatible with the duties of the municipal controller or an official of the service of the municipal controller, with the duties of the director of municipal administration or a state servant of municipal administration, with the duties of heads of municipal institutions funded form the budget, the duties of a single person director or a member of collegial management bodies of municipal establishments and enterprises, the duties of a member of collegial management bodies (boards) of joint-stock companies controlled by municipalities or the director of a company (when the board is not formed).“

17. The Law on Elections to Municipal Councils was amended, its separate articles (their paragraphs) were changed by other laws adopted by the Seimas as well. The petitioner does not impugn these supplements and amendments in this case.

II

On the compliance of the Law on Supplement and Amendment of Articles 86, 87 and Its Supplement with Article 881 according to the procedure of its adoption with Paragraph 1 of Article 69 of the Constitution.

1. The petitioner—a group of members of the Seimas—has doubts whether 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 according to the procedure of its adoption is in compliance with Paragraph 1 of Article 69 of the Constitution.

2. The petitioner grounds his doubts on the fact that the Seimas adopted the law while reacting to the Constitutional Court’s ruling of 24 December 2002, therefore, in the opinion of the petitioner, pursuant to chapter twenty eight1 of the Statute of the Seimas “Implementation of Rulings, Conclusions and Decisions of the Constitutional Court”, the Committee on Legal Affairs of the Seimas or another Seimas committee following its offering should have prepared and considered the draft Law as the principal committee; during the sitting of the Seimas, in the absence of offering from the Committee on Legal Affairs of the Seimas, the Committee on State Administration and Local Authorities was appointed as the principal committee for consideration of this draft law. The latter committee prepared the said draft Law and presented it to the Seimas for consideration. In the opinion of the petitioner, when preparing and considering the draft Law under the said procedure, the requirements of chapter twenty eight1 of the Statute of the Seimas were disregarded and that means that Paragraph 1 of Article 69 of the Constitution was violated.

3. In Paragraph 1 of Article 69 of the Constitution it is established: “Laws shall be adopted in the Seimas in accordance with the procedure established by law.”

Paragraph 1 of Article 69 of the Constitution is related to Article 76 of the Constitution, stating the following: “The structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas. The Statute of the Seimas shall have the force of a law.”

The establishment of the procedure of Seimas activities includes also regulation of the legislative procedure (the Constitutional Court’s rulings of 18 October 2000, 14 January 2002). When construing the provision of Paragraph 1 of Article 69 of the Constitution together with the provision of Article 76 of the Constitution the Constitutional Court has stated that both these provisions mean that the legislative procedure may be regulated by the Statute of the Seimas and also by other laws (the Constitutional Court’s rulings of 28 June 2001 and 14 January 2002). The duty of the Seimas to follow the legislation rules defined by the Statute of the Seimas not only may but also should be treated as a constitutional duty because it is preconditioned by the provision established in Paragraph 1 of Article 69 of the Constitution (the Constitutional Court’s rulings of 8 November 1993, 18 October 2000, and 14 January 2002). When establishing the procedure for adoption of laws, the Seimas must pay heed to the norms and principles of the Constitution.

4. Paragraph 1 of Article 68 of the Constitution provides that the right of legislative initiative in the Seimas belongs to the members of the Seimas, the President of the Republic, and the Government.

The Constitutional Court has held that the essence and purpose of the right of legislative initiative is to initiate the legislative procedure. This right is implemented by presenting a draft law to the Seimas. When the subject of the right of legislative initiative in the Seimas presents a draft law, the legislative institution, the Seimas, is obliged to start considering it (the Constitutional Court’s rulings of 8 November 1993, 21 April 1998, and 25 January 2001).

The right of legislative initiative of Seimas members established in Paragraph 1 of Article 68 of the Constitution also implies that every Seimas member may implement this right by himself or together with other Seimas members, or through the structural subdivisions of the Seimas, as the representation of the Nation, indicated in the Statute of the Seimas. It should be noted that, under the Constitution, certain draft laws may be presented to the Seimas only when certain subjects indicated by the Constitution implement certain powers established expressis verbis by the Constitution; for example, the President of the Republic signs international treaties of the Republic of Lithuania and presents them to the Seimas for ratification (Item 2 of Article 84 of the Constitution), the Government prepares a draft state budget and presents it to the Seimas (Item 4 of Article 94, Article 130 of the Constitution), the Seimas, following the proposal of the Government, establishes and abolishes Ministries of the Republic of Lithuania (Item 8 of Article 67 of the Constitution).

In the context of the constitutional justice case at issue it should be noted that when implementing the constitutional right of legislation initiative every member of the Seimas himself or together with other members of the Seimas or through the structural subdivisions of the Seimas, indicated in the Statute of the Seimas, may prepare any draft law and present to the Seimas for consideration, except the ones which, under the Constitution, may be presented to the Seimas only when certain subjects indicated by the Constitution implement certain powers established expressis verbis by the Constitution, regardless of to what structural subdivision or subdivisions of the Seimas a member of the Seimas belongs, and regardless of the purpose, powers, etc. of this subdivision or subdivisions.

A member of the Seimas himself or together with other members of the Seimas or through the structural subdivisions of the Seimas indicated in the Statute of the Seimas may present comments, proposals, amendments, supplements regarding the draft law under the consideration of the Seimas. Presentation of such comments, proposals, amendments, supplements is not regarded as legislation initiative because it has already been implemented; presentation of comments, proposals regarding the considered draft law, amendments, and supplements differs from the legislation initiative in its purpose, since these are different stages of the legislative procedure (the Constitutional Court’s rulings of 8 November 1993 and 25 January 2001).

The Seimas may establish such a legal regulation of presenting the amendments, supplements of the considered draft laws, when the future of the amendments, supplements presented by members of the Seimas is related to whether they are supported by a certain number of members of the Seimas. The Constitutional Court when assessing such a legal regulation set in the Statute of the Seimas has stated that it does not deny the right of members of the Seimas to participate in the considerations of a draft law, present amendments and supplements of the law (the Constitutional Court’s ruling of 25 January 2001).

5. Under Paragraph 1 of Article 7 of the Constitution, any law or other act, which is inconsistent with the Constitution, shall be invalid. Laws adopted by the Seimas, other legal acts must be in compliance with the Constitution. The Constitutional Court may rule a law or other legal act adopted by the Seimas to be in conflict with the Constitution; pursuant to the Law on the Constitutional Court, the Constitutional Court can do that by passing a ruling; in cases provided for by the Constitution and the Law on the Constitutional Court the Constitutional Court makes decisions and also gives conclusions. Rulings, decisions and conclusions of the Constitutional Court are final and not subject to appeal as well as obligatory to all; a ruling of the Constitutional Court constitutes one whole, its constituent parts are interrelated; when passing new laws, amending, supplementing already adopted laws and other legal acts, state institutions are bound by the concept of the provisions of the Constitution and other legal arguments provided in the reasoning parts of rulings of the Constitutional Court (the Constitutional Court’s ruling of 30 May 2003).

It should be noted that from the day of public pronouncement of a ruling or other decision of the Constitutional Court in the courtroom until its official publication (in the official gazette “Valstybės žinios”) a certain period of time has to pass. Thus, normally, after a ruling of the Constitutional Court has been pronounced in the courtroom, its content is known already before it is published officially, although, according to the procedure set by the Constitution and laws, such a ruling of the Constitutional Court is not valid yet.

Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) may not be applied from the day of official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. Thus, when a ruling of the Constitutional Court by which a law (or part thereof) is ruled to be in conflict with the Constitution becomes effective, various uncertainties, lacunae legis, gaps in the legal regulation, even a vacuum may emerge within the legal system. Then it is necessary to correct the legal regulation in such a way so that the gaps in the legal regulation and other uncertainties are removed and the legal regulation becomes clear and harmonised.

Under the Constitution, the Constitutional Court, having, inter alia, assessed what legal situation might emerge after a ruling of the Constitutional Court becomes effective, may establish the date when such a ruling of the Constitutional Court should officially be published; the Constitutional Court may postpone the official publication of its ruling if it is necessary to give the legislature a certain time to remove the lacunae legis which would emerge if a relevant ruling of the Constitutional Court were officially published immediately after it had been publicly pronounced in the hearing of the Constitutional Court and if they constituted preconditions for a basic denial of certain values protected by the Constitution. The said postponement of the official publication of a ruling of the Constitutional Court (inter alia, a ruling by which a certain law (or part thereof) is ruled to be in conflict with the Constitution) is a presumption arising out of the Constitution in order to avoid certain effects unfavourable to society and the state, as well as the human rights and freedoms, which might emerge if a relevant ruling of the Constitutional Court were officially published immediately after its official pronouncement in the hearing of the Constitutional Court and if it became effective on the same day after it had been officially published.

It should be stressed that the legislature, when adopting new, amending and supplementing the existing laws, may not disregard the concept of the provisions of the Constitution and other legal arguments set forth in a ruling of the Constitutional Court that was officially published and became effective. Otherwise, preconditions would be created to rule the laws, provided the Constitutional Court was addressed regarding their constitutionality, to be in conflict with the Constitution. In the context of the constitutional justice case at issue, it should also be stressed that such preconditions could also emerge in the cases when the laws are adopted, valid laws amended and supplemented while disregarding the concept of the provisions of the Constitution and other legal arguments stated in a ruling of the Constitutional Court which was publicly pronounced at the hearing of the Constitutional Court but had not yet been published officially, regardless of whether or not such a ruling of the Constitutional Court ruled a certain law (or part thereof) to be in conflict with the Constitution.

6. It should be held that the said statements regarding the time passing from the public pronouncement of a ruling of the Constitutional Court in the courtroom until the official publication of this ruling may be applied mutatis mutandis to conclusions and decisions of the Constitutional Court.

7. The Seimas may establish a procedure (procedures) of how certain decisions should be made in the Seimas when reacting to the legal situation which could possibly occur after a decision (ruling, conclusion) of the Constitutional Court becomes effective, inter alia, when it is necessary to correct the legal regulation in such a way that the gaps in the legal regulation and other uncertainties were removed. When establishing the said procedure the norms and principles of the Constitution must be paid heed to. In the context of the constitutional justice case at issue it should be noted that when establishing the said procedure the right of legislative initiative of Seimas members and other subjects provided for by the Constitution may not be denied.

8. In chapter twenty eight1 of the Statute of the Seimas (wording of 22 December 1998 with subsequent amendments and supplements) “Implementation of Rulings, Conclusions and Decisions of the Constitutional Court” the following is established:

Article 1811. Revision of the Implementation of Rulings, Conclusions and Decisions of the Constitutional Court

The Deputy Speaker of the Seimas, appointed by the Speaker of the Seimas, shall be responsible for the supervision in the Seimas of the implementation of rulings, conclusions and decisions of the Constitutional Court.

Article 1822. Implementation of rulings of the Constitutional Court

1. When a ruling of the Constitutional Court enters into force which states that a law (or a part thereof) or any other act (or a part thereof) adopted by the Seimas is not in compliance with the Constitution of the Republic of Lithuania or a constitutional law, the Committee on Legal Affairs or, by the advice thereof, any other Seimas committee must, not later than within 3 months, prepare and submit to the Seimas for consideration a draft amending of the law (or a part thereof) or any other act (or a part thereof) adopted by the Seimas which the Constitutional Court has declared that it is not in compliance with the Constitution of the Republic of Lithuania. The Seimas Board may, by the advice of the Committee on Legal Affairs, propose to the Government to prepare a draft amending of the appropriate law (or a part thereof).

2. When preparing draft amending of the laws or any other acts adopted by the Seimas, specified in Paragraph 1 of this Article, the gaps and inconsistencies in the legal regulation as well as other shortcomings and arguments set forth in the Constitutional Court’s ruling must be taken into consideration.

3. On the instruction of the Seimas Board, the Legal Department of the Office of the Seimas must, within one month after the entry into force of the Constitutional Court’s ruling, submit its proposals concerning the implementation of the Constitutional Court’s ruling to the Seimas Committee on Legal Affairs or, on its advice, to another Seimas committee.

Article 1813. Implementation of the Constitutional Court’s Conclusions on a Treaty of the Republic of Lithuania

1. Upon the receipt of the conclusions of the Constitutional Court stating that a treaty, to which the Republic of Lithuania is a party, is not in compliance with the Constitution of the Republic of Lithuania and prior to the ratification of such treaty at the Seimas, the Seimas shall, in the manner prescribed by this Statute, appoint the Seimas committees responsible for harmonisation of the treaty with the Constitution of the Republic of Lithuania as well as submission of this issue for consideration at the Seimas. In all cases, the Committee on Legal Affairs shall be the principal committee. When necessary, the Seimas may appoint an additional committee.

2. The provisions of Article 1812 of this Statute shall apply for the implementation of the Constitutional Court’s conclusions as far as this is related to the time limits and procedure of consideration at the Seimas committee.

Article 1814. Consideration and passing of laws at the Seimas and other acts passed by the Seimas

The draft amending of laws (or parts thereof) and other acts (or parts thereof) passed by the Seimas, which are drawn up when implementing the decisions of the Constitutional Court referred to in this Chapter, shall be considered and passed in accordance with the procedure established in Part V of this Statute.

9. It has been mentioned that the petitioner grounds his doubts regarding the compliance of the Law with the Constitution on the fact that the Seimas adopted 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 while reacting to the Constitutional Court’s ruling of 24 December 2002, thus, in the opinion of the petitioner, pursuant to the provisions of chapter twenty eight1 of the Statute of the Seimas “Implementation of Rulings, Conclusions and Decisions of the Constitutional Court” the draft law must have been prepared and considered by the Committee on Legal Affairs of the Seimas or other committee under its offering as the principal committee. The provisions that when the Constitutional Court’s ruling becomes effective, not later than within 3 months the Committee on Legal Affairs of the Seimas or other committee under its offering shall prepare and present to the Seimas a draft amendment of the law (or part thereof) or other act (or part thereof) adopted by the Seimas, which were found by the Constitutional Court as contradicting to the Constitution, for consideration and that further to the presentation of the Committee on Legal Affairs of the Seimas the Board of the Seimas may propose that the Government prepare a draft amendment of the relevant law (or part thereof), are established in Paragraph 1 of Article 1812 of the Statute of the Seimas.

10. If one construes Paragraph 1 of Article 1812 of the Statute of the Seimas only literally and linguistically, it may be possible to state that it, purportedly, establishes a legal regulation whereby after a ruling of the Constitutional Court, by which a certain law (or part thereof) or other legal act (or part thereof) adopted by the Seimas is ruled to be in conflict with the Constitution becomes effective, only the Committee on Legal Affairs of the Seimas or other committee upon its offering may prepare and present to the Seimas the draft amendments, supplements of this law or other legal act adopted by the Seimas. In other words, if construing Paragraph 1 of Article 1812 of the Statute of the Seimas literally alone, it would be possible to assume that only the Committee on Legal Affairs of the Seimas or other committee under its offering has the exclusive right (prerogative) to prepare and present to the Seimas the said drafts, thus, no other committee of the Seimas structural subdivision of the Seimas, as the representation of the Nation, no other member of the Seimas or group of members of the Seimas have this right. Such construction of Paragraph 1 of Article 1812 of the Statute of the Seimas would demonstrably deny the concept of the Seimas, as the representation of the Nation, established in the Constitution. In this context it should be noted that, pursuant to the way it was stated in the Constitutional Court’s ruling of 13 May 2004, no such legal regulation, by which the constitutional functions of the Seimas, inter alia, the legislative function would be denied or the possibilities of implementing them were restricted, may be established because this way the Seimas, the representation of the Nation, would be obstructed in acting effectively in the interests of the Nation and the State of Lithuania.

The said only linguistic construction of Paragraph 1 of Article 1812 of the Statute of the Seimas would also mean that reacting to the rulings of the Constitutional Court by which certain laws (parts thereof) or other legal acts (parts thereof) adopted by the Seimas were ruled to be in conflict with the Constitution, is a monopoly of the only Seimas committee, the Committee on Legal Affairs of the Seimas (or under its presentation another committee), during the legislative procedure. When construing Paragraph 1 of Article 1812 of the Statute of the Seimas this way, the legal meaning of the Constitutional Court’s rulings and the official constitutional doctrine framed within them would be distorted or even denied because, under the Constitution, the Constitutional Court’s rulings are mandatory to all, thus, no subject participating in adoption of laws or other legal acts by the Seimas, may be obstructed to ground his legislative initiatives and other activity on the Constitutional Court’s rulings as well as the official constitutional doctrine formulated within them or other statements.

In this respect the fact whether or not any subject participating in the legislative process grounds his position on the Constitutional Court’s rulings, the official constitutional doctrine stated in them or other statements, or other arguments, is not and may not be of importance.

11. It should be stated that the provisions of Paragraph 1 of Article 1812 of the Statute of the Seimas are framed in such a way that a different, namely, systemic and teleological construction of this paragraph based on the presumptions of the reasoning of the legislature and those of the constitutionality of the legal regulation is possible, when no doubts arise regarding the compliance of the legal regulation established in this paragraph with the Constitution. When construing Paragraph 1 of Article 1812 of the Statute of the Seimas in a systemic manner, the powers of the Committee on Legal Affairs of the Seimas or following its offering other Seimas committee to prepare and present to the Seimas the draft amendments, supplements of this law or other legal act adopted by the Seimas, after a ruling of the Constitutional Court, by which a certain law (or part thereof) or other legal act (or part thereof) adopted by the Seimas was ruled to be in conflict with the Constitution, became effective, should be treated not as an exceptional right (prerogative) of the Committee on Legal Affairs of the Seimas or further to its presentation of another Seimas committee, but rather an obligation of the Committee on Legal Affairs of the Seimas or, further to its presentation, of another Seimas committee to properly react to the rulings of the Constitutional Court.

12. When construing Paragraph 1 of Article 1812 of the Statute of the Seimas in a systemic manner, it is necessary, inter alia, to take into consideration the provisions of the Statute of the Seimas regulating the implementation of the constitutionally established legislative initiative right of a Seimas member in the Seimas.

In the context of the heard constitutional justice case it should be noted that pursuant to Item 6 of Article 9 of the Statute of the Seimas (wording of 22 December 1998 and 9 November 2004), a member of the Seimas has the right, according to the procedure set by the Statute of the Seimas, to prepare and present draft laws and other legal acts to the Seimas for consideration. Under the Statute of the Seimas, the draft laws and other legal acts of the Seimas and proposals regarding them are presented to the Seimas by the institutions and persons who, under the Constitution, have the right of legislative initiative (Paragraph 1 of Article 135 (wordings of 22 December 1998 and 9 November 2004)); the draft law or other legal act of the Seimas is presented in the Seimas sitting by the initiator of the draft or his representative (Paragraph 1 of Article 141 (wording of 5 September 2002)); having decided to initiate the consideration procedure of the draft, the Seimas during the same sitting shall set the preliminary date for its consideration in the Seimas (after one week at the earliest and until the end of the session at the latest), in the principal committee and additional committees for further consideration or improvement of the Draft (Paragraph 2 of Article 144). It should also be noted that the Statute of the Seimas (namely its Part V) establishes the legal regulation pursuant to which all Seimas members and Seimas committees may present comments and proposals regarding the registered and/or considered draft legal acts in the Seimas. In this regard none of the Seimas committees have any exceptions provided in Part V of the Statute of the Seimas.

Thus, Paragraph 1 of Article 1812 of the Statute of the Seimas may not be construed as stipulating that, purportedly, after a ruling of the Constitutional Court, by which a certain law (or part thereof) or other legal act (or part thereof) adopted by the Seimas was ruled to be in conflict with the Constitution, becomes effective, only the Committee on Legal Affairs of the Seimas or, following its offering, another committee has the right to prepare and present to the Seimas draft amendments and supplements of that law or other legal act adopted by the Seimas and that no other committee of the Seimas or a structural subdivision of the Seimas, as the representation of the Nation, or a Seimas member or group of Seimas members has such a right. It has been held in this ruling of the Constitutional Court that pursuant to Paragraph 1 of Article 1812 of the Statute of the Seimas the Committee on Legal Affairs of the Seimas or, following its offering, another committee is obliged to properly react to rulings of the Constitutional Court by which certain laws (parts thereof) or other legal acts (parts thereof) adopted by the Seimas are ruled to be in conflict with the Constitution rather than having an exceptional right. When construing Paragraph 1 of Article 1812 of the Statute of the Seimas in a systemic manner, it is clear that by the legal regulation established in this paragraph neither the right of legislative initiative of members of the Seimas nor the legislative procedures set in the Statute of the Seimas (namely, Part V) and related to the implementation of this right is denied.

13. At the same time it should be noted that the wording “Implementation of Rulings, Conclusions and Decisions of the Constitutional Court” (and various modifications of it) used in chapter twenty eight1 of the Statute of the Seimas is not irreproachable from the legal point of view and should be corrected. The other legal regulation set in this chapter is also not irreproachable.

Pursuant to the Constitution, a law (or part thereof) or other legal act (or part thereof) may not be applied from the day of official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution; rulings of the Constitutional Court are final and not subject to appeal. Implementation of rulings, conclusions and decisions of the Constitutional Court may not be related to whether or not the Seimas, taking account of a corresponding ruling, conclusion and decision of the Constitutional Court, adopted certain laws or other legal acts and/or amended, supplemented laws (parts thereof) or other legal acts (parts thereof) which were ruled by the Constitutional Court to be in conflict with the Constitution, whether or not it made or failed to make some other decisions while reacting to the rulings, conclusions and decisions of the Constitutional Court. The wording “Implementation of Rulings, Conclusions and Decisions of the Constitutional Court” (and its various modifications) used in chapter twenty eight1 of the Statute of the Seimas may not be construed as meaning that, purportedly, the rulings, conclusions and decisions of the Constitutional Court are not and should not be implemented until the Seimas, while taking account of the rulings, conclusions and decisions of the Constitutional Court, has adopted a law or other legal act, amended and supplemented the laws (parts thereof) or other legal acts (parts thereof), which were ruled by the Constitutional Court to be in conflict with the Constitution, or until it has made any other decisions thus reacting to the rulings, conclusions and decisions of the Constitutional Court.

The fact that the Statute of the Seimas (namely, chapter twenty eight1) establishes the actions to be made, inter alia, in the Seimas after a ruling of the Constitutional Court by which a law (or part thereof) or other legal act (or part thereof) adopted by the Seimas is ruled to be in conflict with the Constitution becomes effective does not mean that the opportunity of other subjects, inter alia, legislative subjects and other subjects participating in the legislative procedure in the Seimas, to respectively react to the said rulings of the Constitutional Court is denied.

In this context, it should be noted that, as held in the ruling of the Constitutional Court, under Item 4 Article 94 and Article 130 of the Constitution the Government prepares a draft State Budget and presents it to the Seimas; by the legal regulation established in the Statute of the Seimas (namely chapter twenty eight1) the right of the Government to present to the Seimas certain amendments and supplements of the law on the State Budget by which it is suggested to amend the law on the state budget or to adopt another decision on this matter by which it would be reacted to the Constitutional Court’s ruling by which the law on the state budget (or parts thereof) is ruled to be in conflict with the Constitution is not denied.

Under the Constitution, the Constitutional Court shall consider and adopt a decision whether the laws and other acts adopted by the Seimas are not in conflict with the Constitution (Paragraph 1 of Article 105 of the Constitution), also whether acts of the President of the Republic and acts of the Government are not in conflict with the Constitution and laws (Paragraph 2 of Article 105 of the Constitution). In its ruling of 13 December 2004, the Constitutional Court held that from the constitutional principle of a state under the rule of law and other constitutional imperatives arises the requirement to the legislature to pay heed to the hierarchy of legal acts which originates from the Constitution. This requirement means, inter alia, that it is prohibited to regulate the public relations by legal acts of lower legal force, which may be regulated only by legal acts of higher legal force, it also means that it is prohibited to establish in legal acts of lower legal force any such legal regulation, which would compete with the one established in the legal acts of higher legal force. It has been mentioned that, under the Law on the Constitutional Court, the Constitutional Court may rule, by means of a ruling, a law adopted by the Seimas to be in conflict with the Constitution. Taking account of the principle of supremacy of the Constitution, of the constitutional principle of the rule of law and the hierarchy of legal acts established in the Constitution, it should be held that the Constitutional Court, under the Constitution and the Law on the Constitutional Court, enjoys the powers to investigate, and pass a ruling, whether constitutional laws (parts thereof) are not in conflict with the Constitution, whether laws (parts thereof) are not in conflict with the Constitution and constitutional laws, whether substatutory legal acts (parts thereof) adopted by the Seimas are not in conflict with the Constitution, constitutional laws and laws, whether acts (parts thereof) of the President of the Republic are not in conflict with the Constitution, constitutional laws and laws, and whether acts (parts thereof) of the Government are not in conflict with the Constitution, constitutional laws and laws.

After it has been established in the Statute of the Seimas (namely its chapter twenty eight1) what actions should be made in the Seimas, inter alia, when a ruling of the Constitutional Court by which a certain law (or part thereof) or other legal act (or part thereof) adopted by the Seimas is ruled to be in conflict with the Constitution and constitutional laws becomes effective and upon failure to establish what actions should be taken in the Seimas when the Constitutional Court passes a ruling that constitutional laws are in conflict with the Constitution or that substatutory legal acts (parts thereof) adopted by the Seimas are in conflict with the laws, a corresponding legal gap in the legal regulation has been created in the Statute of the Seimas.

In this context it should also be stated that the Constitution does not prevent the Seimas when it, inter alia, adopts certain laws or other legal acts and/or amends and supplements laws (parts thereof) and other legal acts (parts thereof) to react also to the Constitutional Court’s rulings by which acts (parts thereof) of the President of the Republic and/or the Government are ruled to be in conflict with the Constitution, constitutional laws and laws.

14. When deciding whether 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 (wording of 28 January 2003) further to the procedure of its adoption is in the compliance with Paragraph 1 of Article 69 of the Constitution in the aspect indicated by the petitioner (regarding the fact that, according to the petitioner, when reacting to the Constitutional Court’s ruling of 24 December 2002 and in the absence of presentation of the Committee on Legal Affairs, the Committee on State Administration and Local Authorities was appointed as the principal one for consideration of this draft Law and it prepared the said draft Law and presented it to the Seimas for consideration), it should be noted that, as held in this ruling of the Constitutional Court, Paragraph 1 of Article 1812 of the Statute of the Seimas may not be construed as the one stipulating that, purportedly, after a ruling of the Constitutional Court by which a law (or part thereof) or other legal act (or part thereof) adopted by the Seimas is ruled to be in conflict with the Constitution becomes effective, only the Committee on Legal Affairs of the Seimas or, following its offering, another committee has the exceptional right (prerogative) to prepare and present to the Seimas draft amendments and supplements of the said laws or other legal acts adopted by the Seimas and that no other Seimas committee and structural subdivision of the Seimas as the representation of Nation, nor a Seimas member or a group of Seimas members have this right, also, that neither the right of legislative initiative of Seimas members established in the Constitution nor the legislative procedures set in the Statute of the Seimas (namely, its Part V) and related to the implementation of this right are denied by the legal regulation established in Paragraph 1 of Article 1812 of the Statute of the Seimas.

It should also be noted that in the explanatory note of the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) presented by the Seimas member P. Papovas and registered in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat on 16 January 2003 it was indicated, inter alia, that “the purpose of presented draft laws is to remove, further to the right of legislative initiative, the gap in the legal normative regulation after the Constitutional Court construed in its ruling of 24 December 2004 that <…> pursuant to the principle of the prohibition on a dual mandate established in the Constitution the same persons may not at the same time discharge the functions while exercising state power and be members of municipal councils through which the right of self-government is implemented”.

15. It has been mentioned that on the 16 January 2003 in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) presented by the Seimas member P. Papovas was registered and that the Seimas member presented this draft law in the Seimas sitting of 21 January 2003.

It should be stated that in this way the Seimas member P. Papovas implemented the right of legislative initiative in the Seimas enjoyed by him as a Seimas member pursuant to the Constitution.

16. It has been mentioned that during the 23 January 2003 Seimas sitting further to the proposal of the Assembly of Elders, the Seimas Committee on State Administration and Local Authorities was appointed as the principal committee to consider the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) and the Committee on Legal Affairs of the Seimas as additional one and also that the date of considering this draft law by the Seimas was appointed, i.e. 28 January 2003.

It should be held that in this way the Seimas adopted a decision provided for by Paragraph 2 of Article 144 of the Statute of the Seimas.

17. It has been mentioned that in the Seimas, while continuing the procedure of consideration of the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222), the Seimas Committee on State Administration and Local Authorities in its meeting of 27 January 2003 considered the Draft Law on Supplementing and Amending Article 87 of the Law on Elections to Municipal Councils and Supplementing the Law with Article 881 (No. IXP-2222) and approved of the improved draft law and also that on 28 January 2003 the said improved draft law, now called the Republic of Lithuania Draft 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 registered in the Register of Draft Laws and Proposals received by the Seimas Sittings Secretariat and was given reference number IXP-2222(2SP).

The case contains no data that on this stage of legislation any of the requirements of the Statute of the Seimas or other legal acts were violated.

18. It has been mentioned that on 28 January 2003 the Legal Department of the Office of the Seimas presented its conclusions regarding the Draft 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 (No. IXP-2222(2SP)) in which it was stated, inter alia, that the provision of the Draft 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 (No. IXP-2222(2SP)) concerning the fact that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the municipal council mandate by a person elected as a municipal council member before the first sitting of the municipal council had to be applied from the municipal council elections of the next term of office, contradicted to the Constitutional Court’s ruling of 24 December 2002 and that, under Paragraph 5 of Article 72 of the Law on the Constitutional Court, the power of the Constitutional Court to rule a legal act or part thereof unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof.

Such statements of the conclusion of the Legal Department of the Office of the Seimas mean that in the opinion of the Legal Department of the Office of the Seimas, a relevant provision of the Draft 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 (No. IXP-2222(2SP)), which was approved of by the Seimas Committee on State Administration and Local Authorities in its meeting of 27 January 2003 (indicated in Paragraph 2 of Article 4 of the said draft) was in conflict with the Constitution.

In this context it should be mentioned 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, which was adopted on 28 January 2003, by the Constitutional Court’s ruling of 30 May 2003 was ruled to be 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.

It is established in Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) that “If the Legal Department presents conclusions that a draft is not in compliance with the Constitution of the Republic of Lithuania, the Committee on Legal Affairs must preliminarily consider this draft.“

It has been mentioned that the laws adopted by the Seimas must be in compliance with the Constitution. The compliance of laws and other legal acts of the Seimas with the Constitution is ensured not only by the constitutional control of the legal acts adopted by the Seimas, which is carried out by the Constitutional Court when the latter decides whether the constitutional laws (parts thereof) adopted by the Seimas are not in conflict with the Constitution, whether laws (parts thereof) are not in conflict with the Constitution and constitutional laws, whether substatutory legal act (parts thereof) adopted by the Seimas are not in conflict with the Constitution, constitutional laws and laws, but also the internal preventive control implemented by the Seimas in the manner established in the Statute of the Seimas, which prevents adoption of laws and other legal acts which could possibly in conflict with the Constitution or other legal acts of higher legal force.

The provision of Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) stating that if the Legal Department presents the conclusion that a draft law is not in compliance with the Constitution, the Committee on Legal Affairs must preliminarily consider this draft, should be treated as one of the legal means to seek to achieve that the laws and other legal acts adopted by the Seimas would not be in conflict with the Constitution.

From the case material it is clear that after the Legal Department of the Office of the Seimas presented its conclusion on 28 January 2003, which stated, inter alia, that, in the opinion of this department, a certain provision of the Draft 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 (No. IXP-2222(2SP)), which had been approved of by the Seimas Committee on State Administration and Local Authorities in its meeting of the 27 January 2003, contradicted to the Constitution, the said draft law was not considered in the Committee on Legal Affairs of the Seimas, and on the same day the relevant law was adopted by the Seimas under special urgency procedure.

Thus, Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) was violated. At the same time it should be noted that in this case a violation was made which prevented application of one of the Seimas internal preventive legal means enabling to seek to achieve that the adopted laws and other legal acts be in compliance with the Constitution. Thus, the violation of Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) should be treated as an essential violation of the legislative procedure.

It has been mentioned that under Paragraph 1 of Article 69 of the Constitution, laws shall be adopted in the Seimas in accordance with the procedure established by law, and, under Article 76 of the Constitution, the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas, which has the force of a law. In this ruling of the Constitutional Court it was stated that, under the Constitution, the legislative procedure may be regulated by the Statute of the Seimas and also by other laws and that the duty of the Seimas to follow the legislation rules defined by the Statute of the Seimas should be treated as a constitutional duty. The Seimas, when it adopts laws and other legal acts, is bound not only directly by the Constitution but also by the Statute of the Seimas.

Having stated that after the Legal Department of the Office of the Seimas presented its conclusion on the 28 January 2003, which stated, inter alia, that the provision of the Draft 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 (No. IXP-2222(2SP)), that the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusing of the mandate of a council member by a person elected a member of the municipal council before the first sitting of the municipal council had to be applied from the municipal council elections of the new term of office were in conflict with the Constitution, and after the Committee on Legal Affairs of the Seimas failed to consider the said draft law, Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) was violated and that the violation of Paragraph 2 of Article 138 of the Statute of the Seimas (wording of 10 October 2000) should be treated as an essential violation of the legislative procedure, it should also be stated that in this stage of the legislative procedure the provision of Paragraph 1 of Article 69 of the Constitution, indicating that laws shall be adopted in the Seimas in accordance with the procedure established by law, was also violated.

19. Taking account of the arguments set forth, the conclusion should be drawn 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 according to the procedure of its adoption is in conflict with Paragraph 1 of Article 69 of the Constitution.

20. Having stated 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 according to the procedure of its adoption is in conflict with Paragraph 1 of Article 69 of the Constitution, the Constitutional Court in this case will not consider the provisions of the Statute of the Seimas regulating further legislative procedures and will not investigate whether these other procedures established in the Statute of the Seimas were violated when the said law was being adopted in the Seimas.

III

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 (wording of 28 January 2003) with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law.

1. The petitioner—a group of Seimas members—has 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 consolidating that “the norms of Paragraph 2 of Article 881 of the Law on Elections to Municipal Councils regarding the refusal of the mandate of the municipal council member by the persons elected as a municipal council member before the first sitting of the municipal council indicated in Article 3 of this Law shall be applied from the elections to municipal councils for the next term of office”, is not in conflict, by its content, with the principle of a state under the rule of law set in the Preamble to the Constitution, Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article 119 of the Constitution.

2. It has been mentioned that by the Constitutional Court’s ruling of 30 May 2003 it was recognised that Paragraph 2 of Article 4 of the Law was 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.

Thus, the question of the compliance of Paragraph 2 of Article 4 of the Law with the Constitution was solved by the Constitutional Court’s ruling of 30 May 2003.

It has been mentioned that the Constitutional Court’s ruling of 30 May 2003 was officially published in the official gazette “Valstybės žinios” and became effective on 31 May 2003.

3. Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court shall refuse to consider petitions requesting an investigation into the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution indicated in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force.

In Paragraph 3 of Article 69 of the Law on the Constitutional Court it is prescribed that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

4. Taking account of the arguments set forth, the part of the case regarding 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 (wording of 28 January 2003) with Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7, Paragraphs 1 and 2 of Article 107, Paragraph 2 of Article 119 of the Constitution, and the constitutional principle of a state under the rule of law must be dismissed.

IV

On the compliance of Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils with the constitutional principle of a state under the rule of law.

1. The petitioner—group of Seimas members has doubts whether 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 (wording of 28 January 2003), according to the procedure of its adoption, is not in conflict with the principle of a state under the rule of law established in the Preamble to the Constitution.

2. The constitutional principle of a state under the rule of law is consolidated not only by the striving for an open, just and harmonious civil society and state under the rule of law proclaimed in the Preamble to the Constitution, but also in various aspects by other provisions of the Constitution. An investigation into the compliance of legal acts (parts thereof) with the striving for an open, just and harmonious civil society and state under the rule of law proclaimed in the Preamble to the Constitution implies an investigation into their compliance with the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 13 December 2004 and 29 December 2004).

3. When reasoning his position, the petitioner refers to Article 3 of the Law. It should be stressed that in this article the municipal council elections relations are not directly regulated—by this article the Law on Elections to Municipal Councils (wording of 19 September 2002) was supplemented with Article 881.

It has been mentioned that Article 881 of the Law on Elections to Municipal Councils (wording of 28 January 2003) adopted on 25 March 2004 by 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 amended and set forth in a new wording.

4. In Article 881 of the Law on Elections to Municipal Councils (wording of 28 January 2003) the following was established:

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

2. If the person discharging the duties indicated in Paragraph 1 of this Article is elected a municipal council member or while being a municipal council member he discharges the duties or takes the duties indicated in Paragraph 1 of this Article, he must decide and refuse either these duties or the mandate of a municipal council member. The elected council member having decided to refuse the mandate of a council member within 10 days before the day of the first sitting of the municipal council shall hand in a notary approved application regarding refusal of the mandate of a municipal council member to the Central Electoral Commission personally or send it by mail. Upon reception of this application the Central Electoral Commission within 7 days before the day of the first municipal council sitting shall decide on the loss of the mandate of a municipal council member and acknowledgement of the mandate to a new council member. The candidates from the post-elective candidate list who decided to refuse the mandate of a municipal council member shall within 7 days before the day of the first municipal council sitting present the applications regarding refusal of the mandate of a municipal council member to the Central Electoral Commission. Under the procedure indicated in Articles 86 and 87 of this Law, the Central Electoral Commission shall decide regarding the person who has the powers of a council member and is discharging or who has taken duties which are incompatible with the duties of the municipal council member.”

5. The petitioner grounds his doubts on the fact that the legislature, having established in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils that duties of council member are incompatible with the duties of the President of the Republic, a Seimas member, a Government member, or with the duties of a public official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also, with the duties of a county chief, the municipal controller or an official of the service of the municipal controller, with the duties of the director of municipal administration or a public servant of municipal administration, failed to provide a final list of officials who, under the Constitution, have the power to control or supervise activities of municipalities.

Thus, the doubts of the petitioner regarding the compliance of Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils with the constitutional principle of a state under the rule of law are grounded on the fact that, in his opinion, a certain legal regulation was not established in this paragraph, which, according to the petitioner, should have been established. The petitioner basically questions not the regulation expressis verbis established in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils, but rather a legislative omission present in this paragraph, i.e. something, in the opinion of the petitioner, that was not established in this paragraph but, in the opinion of the petitioner, should, under the Constitution, have been established by the legislature, i.e. the petition questions a gap in the legal regulation which, in the opinion of the petitioner, is prohibited by the Constitution.

In the opinion of the petitioner, the legislative omission in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils was presupposed by the provision of this paragraph that “duties of a council member are incompatible with <…> the duties of a state official who, under the Constitution and laws, has the powers to control or supervise the activities of municipalities”.

Thus, the petitioner in fact has doubts whether Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils is in compliance with the constitutional principle of a state under the rule of law.

6. The legislature, when establishing duties incompatible with the duties of a municipal council member, may choose various ways of legal text wording, formulation of legal norms and other provisions. Generally, it is possible to formulate the said provisions by setting in a single law a final list of the duties incompatible with the duties of a municipal council member, which would name each of the duties incompatible with the duties of a municipal council member separately and precisely. At the same time, from the practical point of view, it should be noted that this way of legal text wording might create preconditions for the occurrence of such a legal situation, where the said list, established in a single law, fails to include all the duties incompatible with the duties of a municipal council member further to various other laws. Thus, there could always be doubts whether a given list is actually a final one, i.e. exhaustive, and whether a relevant legal regulation established in the law is in compliance with the Constitution. The legal text wording and formulation of legal norms and other provisions where a relevant law, instead of providing a final list of the duties incompatible with the duties of a municipal council member, would provide and generalise the criteria according to which certain duties are assigned to those incompatible with the duties of a municipal council member, would much better ensure the requirements of the Constitution, the consistency and harmony of the legal regulation. It is obvious that in this way establishing the duties incompatible with the duties of a municipal council member, it is important to pay heed, inter alia, to the imperatives of the Constitution that the same persons may not discharge the functions while exercising state power and at the same time be members of the municipal council through which the right of self-government is implemented, that the principle of the prohibition on a dual mandate is established in the Constitution, that the state officials who, under the Constitution and laws, enjoy the powers to control or supervise the activities of municipalities may not be municipal council members, also that the officials of institutions accountable to the municipalities may not be municipal council members. In this way, by setting in the law the duties incompatible with the duties of municipal council member it is necessary to establish by law also the procedure of control of such compatibility of duties in case uncertainties arise whether a certain person may, under the Constitution, discharge certain duties and be a municipal council member at the same time, so that it would always be possible to decide efficiently whether, under the Constitution, certain duties are incompatible with the duties of a municipal council member.

7. In Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils the duties incompatible with the duties of a municipal council member were established, inter alia, by presenting a more generally formulated criterion, pursuant to which certain duties are referable to duties incompatible with the duties of a municipal council member; this criterion was expressed by the wording “of a state official who, under the Constitution and laws, enjoys the powers to control or supervise the activities of municipalities”.

8. It has been mentioned that by Article 3 of the Law on Amending Articles 35, 86 and 881 of the Law on Elections to Municipal Councils Article 881 of the Law on Elections to Municipal Councils (wording of 28 January 2003) was amended and that the following is established in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils: “The duties of a council member are incompatible with the duties of the President of the Republic, a member of the Seimas, a member of the Government, a county chief or a deputy county chief, the representative of the Government in a county, the duties of the Auditor General or his deputies. In addition, the duties of a council member are incompatible with the duties of the municipal controller or an official of the service of the municipal controller, with the duties of the director of municipal administration or a state servant of municipal administration, with the duties of heads of municipal institutions funded form the budget, the duties of a single person director or a member of collegial management bodies of municipal establishments and enterprises, the duties of a member of collegial management bodies (boards) of joint-stock companies controlled by municipalities or the director of a company (when the board is not formed).”

If one compares the legal regulation established in Paragraph 1 of Article 881 of the Law on Elections to Municipal Councils (wording of 25 March 2003) with that established in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils it is obvious that Paragraph 1 of Article 881 of the Law on Elections to Municipal Councils (wording of 25 May 2003) establishes different legal regulation than in Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils, that the provision “the duties of a council member are incompatible <…> with the duties of a state official who, under the Constitution and laws, enjoys the powers to control or supervise the activities of municipalities”, inter alia, is gone which, in the opinion of the petitioner, presupposed the legislative omission.

9. In Paragraph 4 of Article 69 of the Law on the Constitutional Court it is prescribed that the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings.

The Constitutional Court has stated in its rulings that the wording of Paragraph 4 of Article 69 of the Law on the Constitutional Court “is the grounds <...> to dismiss the instituted legal proceedings” should be interpreted as establishing the right of the Constitutional Court to dismiss the instituted legal proceedings regarding the circumstances of the case at issue when the Constitutional Court was addressed not by courts but the other subjects indicated in Article 106 of the Constitution (the Constitutional Court’s rulings of 21 August 2002, 4 March 2003, 2 September 2004, and 29 September 2004).

10. With regard to the arguments set forth, the part of the case on the compliance of Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils with the constitutional principle of a state under the rule of law must be dismissed.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and Item 3 of Paragraph 1 and Paragraphs 3 and 4 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the 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, according to the procedure of its adoption, is in conflict with Paragraph 1 of Article 69 of the Constitution of the Republic of Lithuania.

2. To dismiss the part of the case regarding 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 (wording of 28 January 2003) with the Constitution of the Republic of Lithuania.

3. To dismiss the part of the case regarding the compliance of Paragraph 1 of Article 881 (wording of 28 January 2003) of the Law on Elections to Municipal Councils with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:       Armanas Abramavičius

                                                                            Egidijus Jarašiūnas

                                                                            Egidijus Kūris

                                                                            Kęstutis Lapinskas

                                                                            Zenonas Namavičius

                                                                            Augustinas Normantas

                                                                            Jonas Prapiestis

                                                                            Vytautas Sinkevičius

                                                                            Stasys Stačiokas