Lt

On elections to municipal councils

Case No. 06/07

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 1 OF ARTICLE 34 (WORDING OF 21 DECEMBER 2006) OF THE REPUBLIC OF LITHUANIA’S LAW ON ELECTIONS TO MUNICIPAL COUNCILS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

9 February 2007

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Bronius Kleponis, senior advisor of the Committee on State Administration and Local Authorities, and Audronė Ožiūnienė, advisor of the Law Department of the Office of the Seimas, acting as the representatives 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, on 8 February 2007, in its public hearing, considered case No. 06/07 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether the provision “candidates to members of the municipal council may be nominated by a party” of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Republic of Lithuania’s Law on Elections to Municipal Councils to the extent that, according to the petitioner, it grants exceptional rights to political parties to nominate candidates to members of municipal councils, is not in conflict with Paragraph 2 of Article 35, Paragraph 2 of Article 119 and Paragraph 1 of Article 135 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the petitioner, considered a civil case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision “candidates to members of the municipal council may be nominated by a party” of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils (hereinafter also referred to as the Law) to the extent that, according to the petitioner, it grants exceptional rights to political parties to nominate candidates to members of municipal councils, is not in conflict with Paragraph 2 of Article 35, Paragraph 2 of Article 119 and Paragraph 1 of Article 135 of the Constitution.

II

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

1. It is established in Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law: “Candidates to members of the municipal council may be nominated by a party, registered according to the Law on Political Parties and meeting requirements of the Law on Political Parties related to the number of members of the party, no later than within 65 days before the election.” Thus, only political parties have the right to nominate candidates to members of municipal councils. This means that voters do not elect members of municipal councils directly, but they do so from among candidates selected by political parties (their bodies). Such legal regulation may violate the principle of direct suffrage entrenched in Paragraph 2 of Article 119 of the Constitution.

2. Political parties nominate to members of municipal councils only such candidates, who are members of the said political parties, who accept the programme of the particular political party or undertake other obligations before the respective political party. Thus, members of political parties have more opportunities to become elected to municipal councils in comparison to persons, who are not members of political parties, which means that they enjoy a “broader” passive electoral right in comparison to persons, who do not belong to political parties. By such legal regulation one may violate the principle of equal suffrage entrenched in Paragraph 2 of Article 119 of the Constitution.

3. The impugned provision virtually compels the persons who strive to become members of municipal councils to join political parties. Such legal regulation may be in conflict with the principle of free decision on becoming a member of political party, as entrenched in Paragraph 2 of Article 35 of the Constitution.

4. According to Article 25 of the International Covenant on Civil and Political Rights, every citizen has the right, without any of the distinctions mentioned in Article 2 (inter alia, discrimination based on political views) and without unreasonable restrictions, to be elected at genuine periodic elections, which shall be by universal and equal suffrage. In the opinion of the petitioner, the impugned provision violates the provisions of Articles 2 and 25 of the above-mentioned covenant; this may be in conflict with the principle of following the undertaken international obligations and respect to the universally recognised principles of international law, as entrenched in Paragraph 1 of Article 135 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from representatives of the Seimas, the party concerned, who were B. Kleponis and A. Ožiūnienė, stating that the impugned provision of Paragraph 1 of Article 34 of the Law is not in conflict with Paragraph 2 of Article 35, Paragraph 2 of Article 119 and Paragraph 1 of Article 135 of the Constitution. The position of the representatives of the Seimas is based on the following arguments.

1. The Constitution restricts the discretion of the legislature in the area of regulation the procedure of elections to members of municipal councils, however, it does not establish any requirements to choose one or another system of elections. The chosen proportional system of elections (Paragraph 1 of Article 1 of the Law) and the established procedure of nominating candidates to members of municipal councils (Paragraph 1 of Article 34 of the Law) are in line with the political reality and the need to ensure political accountability on local level and thus to increase the trust in the political system, it ensures fair representation in municipal councils.

2. Neither the provision “candidates to members of municipal councils may be nominated by a party” of Paragraph 1 of Article 34 of the Law on Elections to Municipal Councils, nor other articles of this law regulating the nomination of candidates to members of municipal councils, demand that political parties nominate only their own members as candidates to members of municipal councils; thus, persons not belonging to any party, as well as representatives of other parties, may be included in the list of candidates to members of the municipal council, too. Therefore, there are no grounds to state that the impugned provision of the Law is in conflict with the constitutional provision “no one may be compelled to belong to any society, political party, or association”.

3. The established in the Law procedure of elections to municipal councils and principles of elections, which are, according to the representatives of the Seimas, the party concerned, in line with restrictions of active and passive electoral right entrenched in Paragraph 2 of Article 119 of the Constitution and which do not violate the constitutional principles of elections to municipal councils, do not infringe the universally recognised principles and norms of international law, either. B. Kleponis and A. Ožiūnienė state that they know no international legal act entrenching the requirement that, in case of proportionate system of elections, the participation of self-nominated candidates is compulsory.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Z. Vaigauskas, the Chairperson of the Central Electoral Commission of the Republic of Lithuania.

V

At the hearing of the Constitutional Court, B. Kleponis and A. Ožiūnienė, the representatives of the Seimas, the party concerned, virtually repeated the arguments set forth in their written explanations.

The Constitutional Court

holds that:

I

1. On 31 May 1994, the Seimas adopted the Republic of Lithuania’s Law on Elections to Municipal Councils.

It was established in Paragraph 1 of Article 30 of this Law, which was adopted by the Seimas, inter alia, that “political parties, political organisations have the right to nominate candidates to members of municipal council”. In the context of the constitutional justice case at issue, it should be noted that the President of the Republic did not sign this law and by his Decree (No. 334) “On Referring the Republic of Lithuania’s Law on Elections to Municipal Councils, which was Adopted by the Seimas of the Republic of Lithuania, Back to the Seimas of the Republic of Lithuania for Repeated Consideration” of 16 June 1994 referred it back to the Seimas for repeated consideration; one of the reasons indicated in this decree of the President of the Republic was that “having not taken account of the fact that according to <…> Article 5 of the Constitution municipal councils do not execute state power, one has formulated in the law a provision that only political parties and organisations have the right to nominate candidates to members of the council, while public organisations are not permitted to nominate candidates to members of the council”, and it was proposed to set forth Article 30 of the aforementioned law, which was adopted by the Seimas, by indicating that “political parties, political organisations and public organisations have the right to nominate candidates to members of a council”.

2. On 7 July 1994, the Seimas adopted the Law on Elections to Municipal Councils, which became effective on 13 July 1994.

When adopting the above-mentioned law, the Seimas also adopted the amendment to Paragraph 1 of Article 30 of this law as indicated by the President of the Republic.

3. The Law on Elections to Municipal Councils (wording of 7 July 1994) was amended more than once.

4. On 23 December 1996, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to Municipal Councils, by Article 1 of which the Law on Elections to Municipal Councils (wording of 7 July 1994 with subsequent amendments) was set forth in a new wording. The Law on Amending the Law on Elections to Municipal Councils, which was adopted by the Seimas on 23 December 1996, became effective on 31 December 1996 (save the exception indicated in it).

5. The Law on Elections to Municipal Councils (wording of 23 December 1996) was amended and/or supplemented more than once, as well.

6. On 19 October 1999, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to Municipal Councils, by Article 1 of which the Law on Elections to Municipal Councils (wording of 23 December 1996 with subsequent amendments and supplements) was set forth in a new wording. The Law on Amending the Law on Elections to Municipal Councils, which was adopted by the Seimas on 19 October 1999, became effective on 4 November 1999 (save the exception indicated in it).

7. The Law on Elections to Municipal Councils (wording of 19 October 1999) was amended and/or supplemented more than once, as well.

8. On 21 December 2006, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to Municipal Councils, by Article 1 of which the Law on Elections to Municipal Councils (wording of 19 October 1999 with all subsequent amendments and supplements) was set forth in a new wording. The Law on Elections to Municipal Councils (wording of 21 December 2006) became effective on 30 December 2006.

9. In this context one should note that, on 11 July 2006, the Seimas adopted the Resolution (No. X-759) “On the Elections to Municipal Councils of 2007”, by Article 1 of which elections to municipal councils were scheduled to be held on 25 February 2007. This resolution of the Seimas became effective on 21 July 2006.

Thus, the Law was set forth in the new wording after more than five months from the day of announcing the date of forthcoming elections to municipal councils, which, at that moment, were due to be held within less than two months from the date when the above-mentioned law of the new wording became effective.

10. The Law on Elections to Municipal Councils (wording of 21 December 2006) was amended by the Republic of Lithuania’s Law on Amending Articles 2, 14, 16, 29, 31, 55, 62, 64, 65, 67, 69 and 73 of the Law on Elections to Municipal Councils, which was adopted by the Seimas on 18 January 2007, and became effective on 19 January 2007. Paragraph 1 of Article 34 of the Law, the compliance of which (to respective extent) with the Constitution is impugned by the petitioner, has not been amended.

II

1. It is established in Article 34 “Nomination of Candidates to Members of a Municipal Council” (wording of 21 December 2006):

1. Candidates to members of the municipal council may be nominated by a party, registered according to the Law on Political Parties and meeting requirements of the Law on Political Parties related to the number of members of the party, no later than within 65 days before the election.

2. The party shall nominate candidates to members of the municipal council by submitting a list of candidates, in which candidates are listed in sequence established by the latter. The number of candidates to members of the municipal council on the list may not be less than 10 and twice as big as the number of mandates set for the concrete constituency. Candidates to members of the municipal council must meet the requirements of Article 2 of this Law.”

2. Inter alia, it is established in Paragraph 1 of Article 1 of the Law that members of municipal councils are elected in multi-member constituencies on the basis of the proportionate election system, and in Paragraph 1 of Article 10 it is prescribed that “one multi-member constituency, in which all voters of this municipality enjoying the active electoral right take vote, is established in order to organise and hold elections within the territory of the municipality”.

3. When construing the legal regulation established in Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils, the compliance of the provision “candidates to members of the municipal council may be nominated by a party” of which with the Constitution is impugned by the petitioner, it should be held, in the context of the whole legal regulation established in this law, that the Law establishes only the proportionate system of elections to municipal councils (their members) and that only the candidates included in the lists of political parties compete in elections to municipal councils. Individuals not included in the lists of political parties may not be nominated as candidates in elections to municipal councils. Moreover, it is not stipulated that societies (associations), which are not political parties, could nominate candidates to members of municipal councils.

4. It should be noted that the proportionate system of elections was entrenched in the Law on Elections to Municipal Councils from the very date of the coming into effect of this law (its first wording of 7 July 1994), i.e. as from 13 July 1994. It should also be noted that, according to this law, for a certain period individuals, included neither in the lists of political parties, nor in the lists of political organisations and public organisations, could compete in the elections to municipal councils, too. For example, it was established in Paragraph 1 of Article 30 of the Law on Elections to Municipal Councils (wording of 7 July 1994), inter alia, that “political parties, political organisations and public organisations have the right to nominate candidates to members of the council”; it was established in Paragraph 1 (wording of 23 December 1996) of Article 35 and Paragraph 1 (wording of 19 October 1999) of Article 34 of the Law on Elections to Municipal Councils that “a political party or a political organisation may nominate candidates to members of the council”.

Thus, when the legal regulation established in the Law on Elections to Municipal Councils was changed, the list persons enjoying the right to nominate candidates to members of municipal councils was narrowed.

III

On the compliance of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils with Paragraph 2 of Article 119 of the Constitution.

1. It is established in Article 119 of the Constitution:

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

The members of municipal councils shall be elected for a four-year term, as provided for by law, from among citizens of the Republic of Lithuania and other permanent residents of the administrative unit by the citizens of the Republic of Lithuania and other permanent residents of the administrative unit, on the basis of universal, equal and direct suffrage by secret ballot.

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

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

2. When deciding, subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, whether the provision “candidates to members of the municipal council may be nominated by a party” of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils to the extent that, according to the petitioner, it grants exceptional rights to political parties to nominate candidates to members of municipal councils, is not in conflict with Paragraph 2 of Article 119 of the Constitution, one must pay heed to the constitutional concept of local self-government and ascertain what imperatives of the legal regulation of relations of elections to municipal councils arise from the Constitution.

In its acts adopted in previous constitutional justice cases the Constitutional Court, while construing the provisions of the Constitution related to local self-government and other provisions, has formulated quite wide official constitutional doctrine of local self-government. In the context of the constitutional justice case at issue it should be noted that, as already held by the Constitutional Court:

state administration and local self-government are two systems of public power, which are consolidated in the Constitution; local self-government is self-regulation and self-action of the communities of the administrative units of state territory, in accordance with the competence defined by the Constitution and laws, which are provided for by law, i.e. territorial communities, which are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents); it is a local public administration system operating on the basis of self-action principles, which is not directly subordinate to state power institutions, which is not identified with self-administration, and which is formed and functions on other constitutional grounds than state power (the Constitutional Court’s rulings of 18 February 1998, 14 January 2002, 24 December 2002, 17 March 2003, and 30 May 2003, its decision of 11 February 2004, its rulings of 25 May 2004, 13 December 2004, and 8 July 2005);

the right to self-government is implemented through democratic representation; municipal councils, through which the right to self-government is implemented, may not be formed in a way so that there might arise doubts as to their legitimacy and legality, inter alia, as to the fact whether the principles of a democratic state under the rule of law were not violated in the course of election of persons to political representative institutions (the Constitutional Court’s ruling of 24 December 2002 and its conclusion of 5 November 2004);

according to Paragraph 2 of Article 119 of the Constitution the enjoyment of the active and passive electoral right in the election of members of municipal councils is linked with a legal fact—permanent residence of the person in a corresponding administrative unit of the territory of the Republic of Lithuania; the legislature has a constitutional duty to establish by law such a procedure for determination of the fact of the permanent residence of the person in a corresponding administrative unit of the territory of the Republic of Lithuania so that members of municipal councils would only be elected by the persons who could reasonably be held permanent residents of corresponding administrative units of the territory of the Republic of Lithuania and that members of municipal councils would only be elected from the persons who could reasonably be held permanent residents of corresponding administrative units of the territory of the Republic of Lithuania (the Constitutional Court’s ruling of 24 December 2002);

according to Article 141 of the Constitution persons performing actual military service or alternative service, as well as officers of the national defence system, of the police and the Interior, non-commissioned officers, re-enlistees and other paid officials of paramilitary and security services who have not retired to the reserve may not be members of municipal councils; according to 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, therefore, members of the Seimas, the President of the Republic, members of the Government, and judges may not be members of municipal councils; the state officials who, according to the Constitution and laws, enjoy the powers to control or supervise the activities of municipal councils, i.e. the state officials (servants and other persons irrespective of how they are referred to in laws) who, under the Constitution and laws, enjoy the powers to adopt the decisions, on which depend the adoption and implementation of decisions of municipal councils within their competence defined in the Constitution and laws, may not be members of municipal councils, either (the Constitutional Court’s ruling of 24 December 2004 and its decisions of 11 February 2004 and 13 February 2004); the said requirements of the Constitution do not mean that the aforementioned persons do not have the right to seek to be elected members of municipal councils (i.e. that they do not enjoy the passive electoral right in the election of members of municipal councils), but that when there occurs a legal situation when a person indicated in Article 141 of the Constitution or 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 (the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003); citizens who are recognised incapable by court shall not participate in elections (Paragraph 3 of Article 34 of the Constitution);

the Constitution establishes limitations on the active electoral right in the elections to municipal councils, as well: only the citizens and other permanent residents of administrative units of the territory of the Republic of Lithuania who, on the day of election, have not reached 18 years of age, as well as the citizens and other permanent residents of administrative units of the territory of the Republic of Lithuania who are recognised incapable by a court do not enjoy the said right; no other limitations on the active electoral right in the elections to municipal councils are established in the Constitution.

3. It is established in Paragraph 1 of Article 34 of the Constitution that citizens who, on the day of election, have reached 18 years of age, shall have the electoral right; in Paragraph 2 it is prescribed that the right to stand for election shall be established by the Constitution of the Republic of Lithuania and by the election laws. It should be noted that the legislature enjoys very broad discretion when implementing the powers to establish the system of elections to municipal councils that arise from Article 34, Paragraphs 2 and 3 of Article 119 and other provisions of the Constitution.

4. The Constitution does not establish any requirements to the legislature as to what system of elections to municipal councils should be chosen. It does not prohibit any changes to the chosen system of elections to municipal councils, either. It has been mentioned that state administration and local self-government, as two systems of public power, are formed and function on different constitutional bases. Thus, the legislature may establish different systems of elections to the Seimas and to municipal councils. According to the Constitution, the system of elections to municipal councils should not necessarily be designed by following the model of the system of elections to the Seimas.

For example, the law may provide for only proportionate or only majoritarian system of elections to municipal councils, or a system, where elements of proportionate and majoritarian systems are combined; neither proportionate or majoritarian systems of elections alone, nor a system of elections, where certain elements of proportionate and majoritarian systems are combined, may be considered as ones that violate the principle of direct elections (which is entrenched in the Constitution) which demands that members of municipal councils are elected by voters instead of any “intermediate” institutions (electoral college etc.) formed on the basis of their vote. Moreover, neither proportionate or majoritarian system of elections alone, nor a system of elections, where certain elements of proportionate and majoritarian systems are combined, may be considered as ones which in themselves create preconditions for violation of the requirements of free and democratic elections, the universal and equal suffrage, secret ballot, as well as other standards of elections in a democratic state under the rule of law.

5. The fact that the Constitution does not establish any requirements to the legislature as to which system of elections to municipal councils should be chosen, does not necessarily mean that absolutely no requirements related to legal regulation of elections to municipal councils arise from the Constitution. When regulating the relations of elections to municipal councils by law, the legislature must pay heed to the provisions of the Constitution—its norms and principles and the constitutional concept of local self-government.

6. In this context it should be noted that such legal regulation of the relations of elections to municipal councils, as established by law, should not create any pre-conditions for violation of the constitutional provision that only the persons who could reasonably be held permanent residents of corresponding administrative units of the territory of the Republic of Lithuania may and must elect members of the said councils, and only such persons may and must be elected members of the said councils.

7. The above-mentioned legal regulation, as established by law, should not create preconditions for violating the right of universal, equal and direct suffrage, as well as the imperative of secret ballot.

In this context it should be mentioned that, as already held by the Constitutional Court in its conclusion of 5 November 2004, the provision of Paragraph 3 of Article 55 of the Constitution that the procedure for election of Members of the Seimas shall be established by law, “the legislature has a duty to consolidate, by means of a law, a system of election of members of the Seimas, to establish the grounds and procedure of arrangement of elections, inter alia, including the nomination of candidates to members of the Seimas, electoral campaigning, the procedure of voting, the establishment of the results of election, the procedures of settling electoral disputes, as well as the regulation of other relations of election of members of the Seimas” and that “while doing so, the legislature <…> may neither itself deny, distort or restrict the universal, equal and direct electoral right and secret ballot, nor create any legal preconditions for other subjects to do so, as, otherwise, this would mean that the supreme sovereign power of the Nation through the representation of the Nation, the Seimas, is denied altogether.”

The provisions of this official constitutional doctrine are applicable mutatis mutandis to the legal regulation of the relations of elections to municipal councils as well.

8. It has been mentioned that local self-government is self-regulation and self-action, in accordance with the competence defined by the Constitution and laws, of the territorial communities, which are composed of permanent residents of the respective administrative units of the territory of the Republic of Lithuania (citizens of the Republic of Lithuania and other permanent residents), a local public administration system operating on the basis of self-action principles, which is not directly subordinate to state power institutions.

The constitutional concept of local self-government implies the broadest opportunities possible for all members of respective territorial community to participate in the decision-making process related to administration of affairs of the particular location (territorial community), thus—the broadest opportunities possible to compete for a place in a council of the respective municipality.

Elections, including elections to municipal councils, are a political process. The electoral right (both active and passive) is closely related to the right of the citizen of the Republic of Lithuania to participate in the governance of his state, as entrenched in Article 33 of the Constitution, as well as with the right of citizens to freely form political parties, provided that the aims and activity thereof are not contrary to the Constitution and laws, as entrenched in Article 35 of the Constitution. It should be noted that the aims of formation of political parties and their activity are inseparable from the striving for public power, thus, from participation in elections to representative institutions of public power, inter alia, municipal councils as well. Whatever system of elections to municipal councils is chosen by the legislature (either proportionate or majoritarian alone, or such a system, in which certain elements of proportionate and majoritarian systems are combined), under the Constitution, one may not establish any such legal regulation which would prevent political parties or candidates nominated or supported by them from participation in the elections to municipal councils (elections of their members). It has been held in this ruling of the Constitutional Court that the proportionate system of elections in itself does not create any preconditions for violation of the principle of direct elections, which is entrenched in the Constitution, nor the requirements for free and democratic elections, universal and equal suffrage, secret ballot, nor other standards of a democratic state under the rule of law.

Thus, under the Constitution, such (proportionate) system of elections to municipal councils, when candidates included in the lists of political parties compete for mandates of members of municipal councils, is permissible.

9. On the other hand, that fact that under the Constitution such (proportionate) system of elections to municipal councils, when candidates included in the lists of political parties compete for mandates of members of municipal councils, is permissible, does not mean that it is constitutionally justifiable to limit the lists of candidates only to the lists formed by political parties, after one has chosen only proportionate system of elections to municipal councils (i.e. a system, where individuals, not included in the list of candidates, may not be nominated as candidates in the elections to municipal councils).

9.1. It should be noted that, as already held by the Constitutional Court in its rulings of 21 December 2000 and 1 July 2004, the content of the constitutional right to freely form political parties is composed of the right to form societies, political parties and associations, the right to join them and take part in their activities, as well as the right not to be a member of political parties, and the right to leave them; an individual of his own free will either implements or does not implement the right of whether to belong to a political party or not; this free will of an individual is a fundamental principle of membership in political parties. The provision of Paragraph 2 of Article 35 of the Constitution that no one may be compelled to belong to any society, political party, or association, is a constitutional guarantee that protects a person from belonging to any association against his will.

In the context of the constitutional justice case at issue one should especially stress that the said constitutional guarantee that protects a person from belonging to any political party against his will also means that the person may not be directly or indirectly compelled to become related to any political party by any relations that are other than formal membership.

Thus, the legislature, when regulating by means of a law the relations of elections to municipal councils, is bound by the requirement that stems from the Constitution not to establish any such legal regulation, where a person, who wishes to use his passive electoral right in elections of members of municipal councils, would be compelled to seek membership in a political party or to become bound with a certain political party by relations that are other than formal membership.

This implies the necessity to ensure that, providing one has chosen only the proportionate system of elections to municipal councils (i.e. a system where individual persons who are not included in the lists of candidates may not be nominated as candidates in the elections to municipal councils), the members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania (citizens of the Republic of Lithuania and other permanent residents)—should have an opportunity to be elected to the councils of the respective municipalities even without support of any political party and to be included as candidates to members of municipal councils in some non-political-party list. Having chosen such (proportional) system of elections of municipal councils, one must ensure the possibility for the members of territorial communities to implement their passive electoral right by being included in other lists, not only those of political parties (and individually, in case the legislature decides so). The societies (associations) which enjoy under the law the right to draw the said lists, may be formed for the period of particular elections to municipal councils, but they may also be of permanent activity if this is established by law.

9.2. The legislature enjoys broad discretion to establish requirements, which should be met by the said lists drawn not by political parties, inter alia, to establish as to how many persons should be included in such a list, whether anyone should support such a list in order to register it for the elections to municipal councils, and if so, how many persons should do that, the time when such a list should be submitted for registration and under what procedure it should be done, etc.

In the context of the constitutional justice case at issue it should be noted that the legislature, while establishing by law that members of territorial communities may exercise their passive electoral right of electing members of municipal councils by being included in non-political-party lists, must pay heed to the obvious circumstance that elections are a political process. Therefore, the legal regulation, where not every union (established not for any type of objectives) (inter alia, not every association, public organisation, community) can make a list of candidates to members of municipal councils and submit it for registration for the elections to municipal councils, would not be constitutionally groundless. In this context one should note that the Constitution entrenches the institute not only of political parties, but also that of political organisations (Paragraph 3 of Article 35, Paragraph 2 of Article 44, Paragraph 2 of Article 83, Paragraph 2 of Article 113, Paragraph 1 of Article 114, and Article 141 of the Constitution); although the notions “political party” and “political organisation” are close, they are not identical.

The legislature, while paying heed to the Constitution, may also establish by law certain criteria related to the territory of activity of societies (which are not political parties), which draw respective lists and submit them for registration to elections to municipal councils (for example, that they should cover respective administrative units of the territory of the Republic of Lithuania).

9.3. Whatever system of elections is chosen by the legislature, it must establish such legal regulation, which would ensure democratic representation of permanent residents of administrative units of the territory of the Republic of Lithuania at the municipal institutions, the proper implementation of the right of self-government and the functioning of municipal institutions, and not create any preconditions for unpredictability, instability and non-efficiency of the activity of municipal councils. Otherwise, the expectations of the voters would be denied and a threat would arise that the constitutional principle of responsible governance will be violated.

10. It has been mentioned that, according to the Constitution, permanent residents of respective administrative units of the territory of the Republic of Lithuania (not only citizens of the Republic of Lithuania), may and must elect members to municipal councils, as well as they may and must be elected members to the said councils.

In this context it should be mentioned that under the Directive 94/80/EC of the European Council of 19 December 1994 laying down the detailed arrangements whereby citizens of the Union residing in a Member State of they are not nationals may exercise the right to vote and to stand as a candidate there in municipal elections (with all subsequent amendments), any person, who on the reference day is a citizen of the Union and not a national of the Member State of residence, but in any event satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals, shall have the right, inter alia, to stand as a candidate in municipal elections in the Member State of residence (Article 3).

It should be noted also that according to the Republic of Lithuania’s Law on Political Parties (wording of 23 March 2004), it is not only citizens of the Republic of Lithuania who may be founders and members of Lithuanian political parties (Paragraph 1 of Article 5). There are no legal arguments, which could be the reason for raising doubts as to the constitutionality of this provision of the Law on Political Parties.

Thus, the opportunities of permanent residents of administrative units of the territory of the Republic of Lithuania, who are not citizens of the Republic of Lithuania, to be included in the lists of candidates drawn by political parties are more limited in comparison to the permanent residents of administrative units of the territory of the Republic of Lithuania, who are citizens of the Republic of Lithuania. On the other hand, neither the Law on Elections to Municipal Councils nor other laws prohibit these residents from being included in the lists of candidates that are drawn by political parties for the elections to municipal councils without being members of the political parties, therefore, there are no grounds to state that their passive electoral right is denied when electing members to municipal councils.

11. It has been held in this ruling of the Constitutional Court that the Law on Elections to Municipal Councils provides for only such proportionate system of elections of municipal councils (their members), where only candidates included in the lists of political parties compete in the elections of municipal councils; according to Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law, the compliance of the provision “candidates to members of the municipal council may be nominated by a party” of which with the Constitution is impugned by the petitioner (by construing it in the context of the whole legal regulation established in this law), individuals, who are not included in the lists of political parties, may not be nominated as candidates in the elections to municipal councils, moreover, it is not provided that candidates to members of municipal councils may be nominated by union (associations) that are not political parties.

12. Such legal regulation deviates from the requirement that arises from the Constitution, inter alia, Paragraph 2 of Article 119 thereof, that after the legislature has chosen only the proportionate system of elections to municipal councils (i.e. the system, where individual persons not included in the lists of candidates may not be nominated as candidates in the elections to municipal councils), members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—should be granted an opportunity to be elected to the councils of the respective municipalities by being included in some non-political-party list as candidates to members of municipal councils.

On the other hand, although the legal regulation established in Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law deviates from the above-mentioned constitutional requirement, still there are no legal grounds to hold that the system of elections to municipal councils, which is entrenched in the Law, in essence denies other imperatives of legal regulation of the relations of elections to municipal bodies, which stem from the Constitution, that it does not permit a democratic formation of municipal institutions or a sufficient implementation of the right of self-government. Thus, it is impossible to assert that such legal regulation virtually denies the constitutional concept of local self-government: one deviates from it only to the extent that after the legislature has chosen only the proportionate system of elections to municipal councils, it has not stipulated that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities even by being included in the lists of candidates to the councils of municipal councils that are drawn by entities other than political parties.

13. Having taken account of the aforementioned arguments, the conclusion should be drawn that Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils to the extent that after the legislature has chosen only the proportionate system of elections to municipal councils, it has not stipulated that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities even by being included in the lists of candidates to the councils of municipal councils that are drawn by entities other than political parties, is in conflict with Article 119 of the Constitution.

14. Having held this, the Constitutional Court will not further investigate in this case of constitutional justice at issue whether the impugned legal regulation is not in conflict with Paragraph 2 of Article 35 and paragraph 1 of Article 135 of the Constitution.

IV

1. This ruling of the Constitutional Court, by which Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils to the extent that after the legislature has chosen only the proportionate system of elections to municipal councils, it has not stipulated that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities even by being included in the lists of candidates to the councils of municipal councils that are drawn by entities other than political parties, is ruled to be in conflict with Paragraph 2 of Article 119 of the Constitution, has been adopted already in the course of the process of elections to municipal councils (as mentioned before, the elections scheduled by the Seimas Resolution (No. X-759) “On the Elections to Municipal Councils of 2007” of 11 July 2006 to be held on 25 February 2007); in addition, some phases of the process of elections as defined in the Law (for example, the formation of constituencies and polling districts, the formation of electoral commissions, the drafting of the lists of voters, the nomination of candidates to members of municipal councils) have already been completed.

2. It has been held in this ruling of the Constitutional Court that such (proportionate) system of elections to municipal councils, where candidates included in the lists of political parties compete for the mandates of members of municipal councils, is possible under the Constitution. Paragraph 1 of Article 34 of the Law is in conflict (to the respective extent) with the Constitution not because political parties enjoy the right to nominate candidates to members of municipal councils, but because of the fact that, according to this paragraph, members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—have no opportunity to be elected to the respective municipal councils also when they are included in some non-political-party list as candidates to members of municipal councils.

3. It has been also held in this ruling of the Constitutional Court that although the legal regulation established in Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law deviates from the constitutional requirement that, after the legislature has chosen only the proportionate system of elections to municipal councils (i.e. a system, where individual persons who are not included in the lists of candidates may not be nominated as candidates in the elections of municipal councils), members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—should have an opportunity to be elected to the respective municipal councils even when they are included in some non-political-party list as candidates to members of municipal councils, still there are no legal grounds to hold that the system of elections to municipal councils, which is entrenched in the Law, virtually denies other imperatives of the legal regulation of relations of elections to municipal councils that stem from the Constitution, that it does not permit a democratic formation of self-government institutions or a sufficient exercise of the right of self-government, that by such legal regulation one fundamentally denies the constitutional concept of local self-government.

Thus, there exist no legal grounds to state that permanent residents of administrative units of the territory of the Republic of Lithuania have absolutely no opportunity to use their passive electoral right when electing the municipal councils in the elections to municipal councils that are scheduled for 25 February 2007 or that these elections will not be free and democratic only because Paragraph 1 of Article 34 of the Law is in conflict (to the respective extent) with the Constitution.

4. It should be noted that, having chosen only the proportionate system of elections, the legislature has a duty to regulate by law the relations of elections to municipal councils so that, as mentioned before, members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—would have the opportunity to be elected to the respective municipal councils also when they are included in some non-political-party list as candidates to members of municipal councils.

The respective amendments to the Law on Elections to Municipal Councils (inter alia, the ones related to the establishment of the procedure of nomination of candidates to members of municipal councils, who are included in a non-political-party list, the registration of such lists, etc.) may be made only by the legislature; no other law-making or law-applying subject may do so, since not only the individual legal regulation, but also the legal regulation of general legal relation—one of elements of the system of elections to municipal councils, which is established to the whole state—must be corrected. Until the legislature adopts the respective legislative decisions, members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—may not be elected as candidates to members of municipal councils if they are included in some non-political-party list.

It should be stressed that universally recognised standards of a democratic state under the rule of law obligate the legislature to perform the said correction of the Law on Elections to Municipal Councils so that there should be a sufficiently long period prior to the next elections to municipal councils.

5. It should especially be noted that if the elections to municipal councils, which must be held on 25 February 2007 and which are, as mentioned before, in process (and some phases of which are already completed), become revoked, postponed or suspended in any other way only due to the fact that, by this ruling of the Constitutional Court, Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils was ruled to be in conflict (to the respective extent) with the Constitution, one would inflict, doubtless to say, much greater damage on the expectations of voters and to the stability of not only local self-government, but to the whole system of public power, in comparison to the fact that the current elections to municipal councils would be held when members of territorial communities—permanent residents of administrative units of the territory of the Republic of Lithuania—may not be elected to the respective municipal councils if they are included in some non-political-party list as candidates to members of municipal councils.

6. It should be also stressed that having taken into account, inter alia, of the fact that the system of elections to municipal councils entrenched in the Law on Elections to Municipal Councils virtually does not deny the imperatives of legal regulation of the relations of elections to municipal councils that stem from the Constitution and does not prevent democratic formation of municipal institutions, nor sufficient implementation of the right of self-government, nor does it deny the constitutional concept of local self-government in essence, the constitutionality of the elections to municipal councils that must be held on 25 February 2007 may not be questioned only on the ground that Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils was ruled by this ruling of the Constitutional Court to be in conflict (to the respective extent) with the Constitution.

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

ruling:

To recognise that Paragraph 1 of Article 34 (wording of 21 December 2006, Official Gazette Valstybės žinios, No. 143-5445) of the Republic of Lithuania’s Law on Elections to Municipal Councils to the extent that after the legislature has chosen only the proportionate system of elections to municipal councils, it has not stipulated that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities even by being included in the lists of candidates to the councils of municipal councils that are drawn by entities other than political parties, is in conflict with Paragraph 2 of Article 119 of 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

                                                                                     Toma Birmontienė

                                                                                     Egidijus Kūris

                                                                                     Kęstutis Lapinskas

                                                                                     Zenonas Namavičius

                                                                                     Ramutė Ruškytė

                                                                                     Vytautas Sinkevičius

                                                                                     Stasys Stačiokas

                                                                                     Romualdas Kęstutis Urbaitis