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On the temporary removal of a municipal council member from the office of mayor or deputy mayor

Case no 11/2015

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ARTICLE 157 (WORDING OF 14 MARCH 2002 AS AMENDED ON 21 SEPTEMBER 2010) OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

17 February 2016, no KT7-N4/2016

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

Povilas Urbšys, a member of the Seimas, 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, at the Court’s public hearing on 20 January 2016, considered the constitutional justice case (no 11/2015) subsequent to the petition (no 1B-17/2015) of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, according to the petitioner, it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, is in conflict with Paragraph 1 of Article 33, Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

1. On 10 September 2015, the Seimas, the petitioner, adopted the resolution (No XII-1936) on applying to the Constitutional Court of the Republic of Lithuania for an investigation into whether Article 157 of the Code of Criminal Procedure of the Republic of Lithuania, in view of the scope of its regulation, is in conflict with the Constitution of the Republic of Lithuania. In Article 1 of this resolution, the Seimas set out its petition requesting an investigation into whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter also referred to as the CCP), insofar as it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, is in conflict with the provision of Article 1 of the Constitution that the State of Lithuania is an independent democratic republic, the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution is a directly applicable act, Paragraph 1 of Article 7, Paragraph 1 of Article 31, Paragraph 1 of Article 33, Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution, as well as with the constitutional principles of a state under the rule of law and the supremacy of the Constitution.

The petition of the Seimas, the petitioner, was received at the Constitutional Court on 22 September 2015.

2. By its decision of 25 September 2015 on partially accepting and partially returning the petition set out by the Seimas of the Republic of Lithuania, the petitioner, in its resolution (No XII-1936) of 10 September 2015 on applying to the Constitutional Court of the Republic of Lithuania for an investigation into whether Article 157 of the Code of Criminal Procedure of the Republic of Lithuania, in view of the scope of its regulation, is in conflict with the Constitution of the Republic of Lithuania, the Constitutional Court decided:

to accept the petition (no 1B-17/2015) of the Seimas, the petitioner, requesting an investigation into whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as, according to the petitioner, it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, is in conflict with Paragraph 1 of Article 33, Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law;

to return the petition (no 1B-17/2015) of the Seimas, the petitioner, requesting an investigation into whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as, according to the petitioner, it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, is in conflict with the provision of Article 1 of the Constitution that the State of Lithuania is an independent democratic republic, the provision of Paragraph 1 of Article 6 of the Constitution that the Constitution is a directly applicable act, Paragraph 1 of Article 7 and Paragraph 1 of Article 31 of the Constitution, as well as with the principle of the supremacy of the Constitution.

3. The announcement of the President of the Constitutional Court on accepting the above-mentioned petition was officially published in the Register of Legal Acts (Register of Legal Acts, 25-09-2015, No 14241) on 25 September 2015. From the day when the said announcement of the President of the Constitutional Court was officially published in the Register of Legal Acts until the day when the ruling of the Constitutional Court in the constitutional justice case at issue is given, the validity of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as, according to the petitioner, it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, is suspended.

4. The petition of the Seimas, the petitioner, is substantiated by the following arguments.

4.1. From the Constitution, inter alia, Paragraph 1 of Article 33 thereof, it follows that only the citizens of the Republic of Lithuania, i.e. the state community – civil Nation, have the right to build the state of Lithuania; only citizens have the right to determine the constitutional order of the State of Lithuania and the composition of institutions implementing state power. The formation and functioning of democratic state institutions is possible only if the electoral rights of citizens are ensured. Therefore, the legal regulation according to which directly elected state politicians may be removed from office for an unlimited period of time restricts the right of citizens to participate in the governance of their state.

4.2. Under the Constitution, human rights and freedoms can be limited in cases where, inter alia, such limitations are necessary in a democratic society in order to protect the rights or freedoms of other persons, other values consolidated in the Constitution, or constitutionally important objectives, provided that such limitations do not deny the nature or essence of human rights and freedoms and the constitutional principle of proportionality is observed. The requirement, deriving from the constitutional principle of proportionality, not to limit the rights and freedoms of a person by means of a law more than necessary in order to reach legitimate objectives that are important to society, inter alia, implies the requirement for the legislature to establish such a legal regulation that creates the preconditions for the sufficient individualisation of limitations placed on the rights and freedoms of a person: a legal regulation that limits the rights and freedoms of a person and is established by means of a law must be such as to create the preconditions for assessing the individual situation of each person and, in view of all the important circumstances, for appropriately individualising the specific measures that apply to and limit the rights of the person.

It is doubtful whether, in this case, limiting the constitutional right to work – which is one of the essential conditions for fulfilling vital human needs and securing an appropriate status in society, i.e. preventing state politicians elected in a direct election from holding their office, is proportionate to the objective, pursued by a democratic society, to protect the state against the possible criminal acts or consequences of other serious offences. In a democratic society, there is no and there may be no justification for the interest or objective that a directly elected state politician, who is a constituent part of the governance or self-governance of the state, be removed from office in cases where an investigation is launched against him/her, since the institution and conduct of an investigation does not mean that the person is indeed guilty of having committed a crime.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Povilas Urbšys, the member of the Seimas acting as the representative of the Seimas, the party concerned, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the Seimas is mainly substantiated by the following arguments.

1. The will of the nation or voters is not and may not be unlimited; otherwise it will be incompatible with the essence of the Constitution itself. The Constitution is also binding on the national community – the civil Nation itself. Whereas directly elected state politicians are bound not only by public trust but also by accountability to the Nation; they must meet higher standards of the transparency of activity than those applicable to other persons not subject to public trust.

2. The notion “directly elected state politicians” comprises several groups of persons, whose legal status substantially differs depending, among other things, on the scope of conferred immunities.

Under the Constitution, the immunities conferred on the President of the Republic and the members of the Seimas are different: while in office, the President of the Republic in no case may be detained, nor held criminally or administratively liable (Paragraph 1 of Article 86 of the Constitution); whereas the right of a member of the Seimas to liberty and the inviolability of his/her person during the term of office may be restricted: under the provisions of Article 62 of the Constitution, with the consent of the Seimas, a member of the Seimas may be held criminally liable or be detained, or his/her liberty may be restricted otherwise. No analogous immunities, as established for the President of the Republic or the members of the Seimas, are consolidated in the Constitution with respect to mayors or other municipal council members: although these politicians are also elected in direct elections, they have no immunities or legal inviolability under the Constitution.

In deciding as to the application of limited criminal responsibility or limited procedural coercive measures, it is essential whether immunity is conferred on concrete subjects and/or what the scope of this immunity is; therefore, the establishment of the general limitation on the application of the provisions of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) to directly elected state politicians would disregard the differences, directly stemming from the Constitution, with respect to the immunities and legal inviolability conferred on persons of this category. In contrast to the provisions laid down with regard to other directly elected state politicians, the Constitution does not consolidate any specific provision as to the legal inviolability of municipal council members, including mayors; therefore, the consolidation of the full or partial limitation on applying one of procedural coercive measures – temporary removal from office – to municipal council members, including mayors, could violate the principle of the supremacy of the Constitution.

3. The principle of the equality of all persons before the law would be violated if a certain group of persons addressed by a particular legal norm, compared to other addressees under the same norm, were treated differently, although there would be no differences of such a character or scope among these groups that could objectively justify this uneven treatment.

Temporary removal from office is applied only where this measure is necessary for the speedier and more impartial investigation of a criminal act or in order to prevent the suspected person from the possibility of committing new crimes; in the same way as other procedural coercive measures, this measure is aimed at collecting the data significant for the investigation and consideration of the case in a court; temporary removal from office can be applied only in cases where the suspected person has committed a criminal act while in office. Thus, in this context, in criminal proceedings, it is important only that a person is suspected, and it is not important which specific office he/she is holding. In addition, from the point of view of legal employment relationships, the status of directly elected state politicians while they are in office is no different from that of other suspected persons.

Consequently, the limited application of the provisions of Article 157 of the CCP with respect to directly elected state politicians would be incompatible with the constitutional principle of the equality of all persons before the law. Since it is impermissible to establish any such legal regulation that would preclude a court from adopting a just decision in a case and, thus, from administering justice, where the court takes account of all the important circumstances of the case, follows law, and does not transgress the imperatives of justice and reasonableness stemming from the Constitution, the above-mentioned limitation would also be incompatible with the principle of justice, as well as with the constitutional principle of a state under the rule of law.

4. The application of the procedural coercive measure established in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP is not unlimited in terms of time, i.e. the provisions in question do not create the preconditions for removing the person from office for an unlimited period of time. This is reflected in the title “The Temporary Removal from Office or the Temporary Suspension of the Right to Engage in a Certain Activity” of the said article, in its provisions establishing the general six-month period for the application of this measure (Paragraph 2), as well as in the provisions on the duty of the prosecutor (during the pretrial investigation) and the court (after the case is referred to the court) to revoke temporary removal from office once this measure becomes no longer necessary (Paragraph 5). In addition, the time period of the application of removal from office is limited by the general procedural principles, including the requirements of speedy and efficient proceedings. Another factor limiting removal from office in terms of time is the general time limits of pretrial investigation, which are consolidated in Article 176 (wording of 21 September 2010) of the CCP and can be extended only in exceptional cases; a prolonged pretrial investigation may be terminated under Article 215 of the CCP.

Thus, the applicable legal regulation lays down the sufficient safeguards conforming to the constitutional principle of proportionality; these safeguards create no preconditions for the abuse of the measure of temporary removal from office or for its unlimited application.

5. If a legal regulation providing for certain reservations or limitations to the application of the procedural coercive measure established in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with respect to certain groups of persons were established, this could lead to interference with the system of procedural coercive measures consolidated in the CCP.

The CCP consolidates a certain hierarchy of procedural coercive measures; some of them are more stringent than others; thus, the establishment of certain special conditions for or limitations to the application of some of these measures would result in disturbing the balance of the consolidated system of procedural coercive measures and the interrelationships between these measures. Such a legal regulation could lead to a situation where, seeking to prevent further criminal acts or to collect evidence, the authorised subjects would be obliged to impose on directly elected state politicians a more stringent coercive measure than that applicable to other persons in an analogous situation.

III

At the hearing of the Constitutional Court, Povilas Urbšys, the member of the Seimas acting as the representative of the Seimas, the party concerned, among other things, indicated that, although the Constitution is binding on the national community – the Nation itself, which means that, under the Constitution, the will of voters may not be absolute, in this case, the matter concerns not the Nation but an individual local community electing its representatives to the municipal council. The will of such a territorial community must not be taken to mean the will of the Nation, and a decision made by such a community must not be equated with the expression of the will of the Nation. Furthermore, there are no grounds for expanding the circle of persons who have, under the Constitution, one or another type of immunity from criminal responsibility (the President of the Republic and the members of the Seimas), i.e. for extending this circle to include municipal council members, whose immunity is not provided for by the Constitution.

In relation to other issues, the representative of the party concerned virtually reiterated the arguments set out in his written explanations and also answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

1. The Seimas, the petitioner, requests an investigation, to the specified extent, into whether the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 1 September 2010) of the CCP is in conflict with Paragraph 1 of Article 33, Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 157 “Temporary Removal from Office or the Temporary Suspension of the Right to Engage in a Certain Activity” (wording of 14 March 2002 as amended on 21 September 2010) of Chapter XII “Other Procedural Coercive Measures” of the CCP prescribes:

1. In the course of an investigation of criminal acts, upon the request of the prosecutor, a pretrial judge shall have the right, by adopting an order, to temporarily remove the suspected person from office or to temporarily suspend his/her right to engage in a certain activity where this is necessary for the speedier and more impartial investigation of the criminal act or for preventing the possibility for the suspected person to commit new criminal acts. The order on the temporary removal of the suspected person from office shall be sent to the employer for enforcement.

2. Temporary removal from office or the temporary suspension of the right to engage in a certain activity may not exceed six months. Where necessary, the application of this measure may be extended for up to three additional months. The number of extensions shall be unlimited.

3. An order on temporary removal from office or on the temporary suspension of the right to engage in a certain activity, as well as an order on extending the term of the application of the said measure, may be appealed against to a higher court by the suspected person or his/her defence counsel within seven days of the day of the announcement of the order to the suspected person. A ruling adopted by the said court shall be final and not subject to appeal.

4. After the case is referred to a court, a decision regarding temporary removal from office or the temporary suspension of the right to engage in a certain activity shall be adopted by the court before which the case has been brought.

5. In the course of a pretrial investigation, the prosecutor or, after the case is referred to a court, the court must revoke the imposed temporary removal from office or the temporary suspension of the right to engage in a certain activity once this measure becomes no longer necessary.”

Thus, the article in question lays down a legal regulation regarding certain procedural coercive measures provided for under the CCP, i.e. temporary removal from office and the temporary suspension of the right to engage in a certain activity.

2.1. The petitioner requests an investigation into the compliance of the impugned legal regulation with the Constitution, insofar as, according to the petitioner, it does not establish any prohibition, or does not provide for any additional criteria, precluding the removal of directly elected state politicians from office for an unlimited period of time.

Consequently, the petitioner impugns the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with the Constitution, insofar as this article, according to the petitioner, to the specified extent, regulates the application of one of the procedural coercive measures provided therein – temporary removal from office.

2.2. As it is clear from the petition, the impugned legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regarding temporary removal from office, if this legal regulation is indeed applicable to directly elected state politicians, is doubted by the petitioner to be in conformity with the provisions of the Constitution indicated in the petition for the reason that, according to the petitioner, this legal regulation creates the possibility of removing the said persons from office for an unlimited period of time.

Thus, in the opinion of the petitioner, directly elected state politicians may not be removed from office at all, or, if they can be removed, the impugned legal regulation should provide for additional criteria limiting the period of their removal from office.

Consequently, the constitutionality of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended 21 September 2010) of the CCP regarding temporary removal from office is doubted insofar as it does not provide for any prohibition precluding the removal of directly elected state politicians from office, or any additional criteria limiting the period of their removal from office.

2.3. The petitioner, to the specified extent and from the aspect of applicability to directly elected state politicians, impugns the compliance of the legal regulation of temporary removal from office as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with Paragraph 1 of Article 33, Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

In this context, it should be mentioned that the representatives of territorial communities are named in the official constitutional doctrine as municipal rather than state politicians (the Constitutional Court’s ruling of 30 April 2013) and the arguments provided by the petitioner and the provisions of the Constitution against which the compliance of the indicated legal regulation is questioned make it clear that the constitutionality of the legal regulation consolidated in the CCP regarding temporary removal from office is, in this case, impugned, inter alia, from the aspect of its applicability to municipal politicians.

It also needs to be mentioned that Paragraph 11 of Article 2 of the Republic of Lithuania’s Law on State Service (wording of 23 April 2002) defines state politicians as persons elected or appointed, under the procedure provided for by laws, as President of the Republic, Speaker of the Seimas, member of the Seimas, Prime Minister, minister, municipal council member, mayor of a municipality, or deputy mayor of a municipality.

2.3.1. It should be noted that the provisions of the Constitution against which the petitioner, to the specified extent, impugns the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, inter alia, consolidate the following:

the right of citizens to participate in the governance of their state both directly and through their democratically elected representatives, as well as the right to enter on equal terms the state service of the Republic of Lithuania (Paragraph 1 of Article 33);

the principles governing the election of the members of municipal councils (Paragraph 2 of Article 119);

the right to freely choose an occupation or business, as well as the right to have proper, safe, and healthy conditions at work and to receive fair pay for work and social security in the event of unemployment (Paragraph 1 of Article 48).

2.3.2. In this context, it should be noted that the Constitutional Court has held that it is specifically through elections that every citizen implements his/her right, together with other citizens, to participate in the governance of the state (the Constitutional Court’s conclusion of 23 November 1996).

The Constitutional Court has also held that the Constitution provides for three types of national elections: the elections of the Seimas, the President of the Republic, and municipal councils (the Constitutional Court’s decision of 11 July 1994 in case no 5/94); the principles of the election of the members of the Seimas are consolidated in Paragraph 1 of Article 55 of the Constitution, and the legal relations in connection with the election of the President of the Republic and municipal council members are regulated, respectively, in Paragraph 2 of Article 78 and Paragraph 2 of Article 119 of the Constitution; under the Constitution, the members of the Seimas, the President of the Republic, and municipal council members are elected by direct suffrage.

2.3.3. To substantiate its doubts regarding the compliance of the impugned legal regulation with the Constitution, the petitioner, among other things, maintains that only citizens have the right to determine the composition of state authority institutions; the formation of democratic state institutions and their functioning is possible only if the electoral rights of citizens are ensured; thus, the impugned legal regulation, under which directly elected state politicians may be removed from office for an unlimited period of time, limits the right of citizens to participate in the governance of their state. The petitioner also doubts whether the impugned legal regulation creates no preconditions for the disproportionate limitation of the right of the person to work.

As it is clear from the entirety of the arguments set out in the petition, the petitioner, to the specified extent, substantiates the conflict of the legal regulation consolidated in the CCP regarding temporary removal from office with the Constitution, in principle, based on the fact that, in the opinion of the petitioner, the impugned legal regulation, in violation of the provisions of the Constitution, inter alia, Paragraph 1 of Article 48, has limited the possibility for directly elected state politicians to perform their duties, as well as, among other things, has violated the right of citizens to participate in the governance of their state through their democratically elected representatives, as implied by the Constitution, inter alia, Paragraph 1 of Article 33 and Paragraph 2 of Article 119 thereof.

2.3.4. It should be noted that the petitioner requests, to the specified extent, an investigation into the compliance of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP only with, inter alia, Paragraph 2 of Article 119 of the Constitution, which consolidates the principles governing the election of the members of municipal councils, and it requests no investigation into the compliance of the impugned legal regulation with any other provisions of the Constitution concerning legal relations in connection with the elections of the members of the Seimas and the President of the Republic.

Thus, although, while substantiating its doubts regarding the constitutionality of the impugned legal regulation of temporary removal from office, the petitioner refers not only to the members of municipal councils but also to directly elected state politicians such as the President of the Republic and the members of the Seimas, the entirety of the arguments set out in the petition and the request formulated in the operative part of the petition make it clear that the petitioner, to the specified extent, has had doubts as to the constitutionality of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regarding temporary removal from office exceptionally insofar as this legal regulation is applicable to directly elected municipal politicians.

2.3.5. In this context, it should be noted that, as mentioned before, Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regulates the procedure for imposing temporary removal from office; under Paragraph 1 of this article, the order on the temporary removal of the suspected person from office is sent to the employer for enforcement.

If Paragraph 1 of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP is interpreted in the context of another legal regulation laid down in this article, it is clear that the consolidated procedural coercive measure of temporary removal from office may be applied exclusively to a person who is engaged in a certain occupational activity and, thus, is a party to employment or similar relations; in other words, under this legal regulation, only a person engaged in a certain occupational activity can be temporarily removed from office related to his/her occupational activity.

2.3.5.1. It should be noted that a municipal council is an institution implementing the right to self-government; it is composed of municipal council members, including a municipal council member who is the mayor of the municipality; a deputy mayor (deputy mayors) is (are) appointed from among the members of the municipal council (Paragraph 1 (wording of 26 June 2014) and Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3, Paragraph 6 (wording of 26 June 2014) of Article 11, and Paragraph 1 (wording of 26 June 2014) of Article 19 of the Republic of Lithuania’s Law on Local Self-Government (wording of 15 September 2008)).

In this context, mention should be made of the following provisions of the Law on Local Self-Government (wording of 15 September 2008):

a mayor is accountable to the municipal council and community for his/her activity and the activity of the municipality (Paragraph 1 (wording of 26 June 2014) of Article 20); a mayor, among other things, plans the activity of the municipal council, sets and draws up the agendas of the sittings of the municipal council, submits draft decisions of the municipal council, convenes and chairs the sittings of the municipal council, coordinates the activities of the committees and commissions of the municipal council, and signs the decisions of the municipal council and the minutes of the sittings he/she has chaired; according to the procedure prescribed in the regulations, a mayor represents or authorises other persons to represent the municipality in a court or during cooperation with other municipalities, state institutions, foreign state institutions, and other legal and natural persons (Items 1 and 2 of Paragraph 2 of Article 20);

a deputy mayor performs the functions and assignments established by the mayor; in cases where a mayor is unable to perform his/her duties, a deputy mayor or a municipal council member who is temporarily acting as mayor performs all the duties of the mayor, with the exception of the powers specified in the law (Paragraph 8 (wording of 26 June 2014) of Article 20);

the release of the mayor from duties before the expiry of his/her term of office, the establishment of the number of deputy mayors, the appointment of deputy mayors upon submission by the mayor, and their release from duties before the expiry of the term of office is an exclusive competence of the municipal council (Item 2 (wording of 26 June 2014) and Item 3 of Paragraph 2 of Article 16);

a deputy mayor loses his/her powers before the expiry of the term of office if at least 1/3 of all municipal council members submit a reasoned motion of no confidence in him/her, the municipal council adopts a decision on the release of the deputy mayor from duties, and at least 1/2 of all municipal council members vote by secret ballot in favour of this decision (Paragraph 3 (wording of 26 June 2014) of Article 19); by a majority vote of all municipal council members, a mayor may be removed from office if official allegations of having committed a crime are brought against him/her (Paragraph 8 (wording of 26 June 2014) of Article 19);

the work remuneration of a mayor and deputy mayor is approved by the municipal council in accordance with the coefficients established by laws (Paragraph 11 (wording of 26 June 2014) of Article 19);

a mayor and deputy mayor may not work in other institutions, establishments, enterprises, or organisations and to receive other remuneration, except remuneration for scientific, educational, or creative activities; this provision does not apply where a deputy mayor performs duties on a voluntary basis (Paragraph 12 (wording of 26 June 2014) of Article 19);

the provisions of the Labour Code of the Republic of Lithuania do not apply to mayors and deputy mayors, with the exception of the provisions regulating working time, periods of rest, and leave, which are indicated in Paragraph 12 of this article, as well as the provisions regulating material responsibility and safety and health at work (Paragraph 14 (wording of 26 June 2014) of Article 19);

the leave of mayors and deputy mayors is subject to the decision of the respective municipal council or its authorised person under the procedure prescribed in the regulations; during their leave, mayors and deputy mayors do not perform their duties as mayors or deputy mayors but may perform the duties of a municipal council member (Paragraph 15 (wording of 26 June 2014) of Article 19).

Thus, municipal council members who are mayors and deputy mayors, while holding their office, perform the functions prescribed by law, inter alia, the functions related to the organisation of the activity of the municipal council and the representation of the municipality, and receive for the performance of these functions remuneration approved by the municipal council, with the exception of the cases where a deputy mayor performs his/her duties on a voluntary basis; while holding their office, mayors and deputy mayors may not receive other remuneration (except remuneration for scientific, educational, or creative activities); to a certain extent, this activity while they are in office is subject to the provisions of the Labour Code. In the context of the constitutional justice case at issue, it should also be noted that, as it is clear from the overall legal regulation established in the Law on Local Self-Government (wording of 15 September 2008), in the event that municipal council members hold the office of mayor or deputy mayor, the respective municipal council performs certain functions comparable to those performed by an employer.

It should also be noted that, as it is clear from the provisions of Paragraph 1 (wording of 9 May 2013) of Article 42 “The Length of Service” of the Law on State Service (wording of 23 April 2002), since 11 March 1990, only the years of service to the State of Lithuania by those municipal council members who held the office of mayor or deputy mayor are included in the length of service, whereas the activity of other municipal council members is not included in the length of service.

2.3.5.2. Thus, within the meaning of the provisions of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, municipal council members who hold the office of mayor or deputy mayor, while performing these duties, are parties to the legal relations, by their nature, comparable to employment relationships, and the performance of these duties can be considered equivalent to an occupational activity; whereas other municipal council members who do not hold the office of mayor or deputy mayor, while performing the powers of municipal council members, within the meaning of the provisions of the article in question, are not parties to legal relations comparable to employment relationships, and the implementation of their powers of municipal council members cannot be considered equivalent to an occupational activity.

Consequently, only those municipal council members who hold the office of mayor or deputy mayor fall within the scope of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, i.e. under the impugned legal regulation, the procedural coercive measure of temporary removal from office can be applied only with regard to the said municipal council members, and, in this way, only they can be removed from the office of mayor or deputy mayor.

2.3.5.3. Thus, the petitioner, in doubting regarding the constitutionality of the legal regulation of temporary removal from office, as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as this legal regulation is applicable to directly elected municipal politicians, has actually had doubts regarding the compliance of this legal regulation with the Constitution exclusively insofar as it is applicable to those directly elected municipal politicians who hold the office of mayor or deputy mayor.

2.3.6. Thus, expressing doubts, to the specified extent, as to the constitutionality of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regarding temporary removal from office, insofar as this legal regulation is applicable to directly elected state politicians, the petitioner has actually had doubts, to the specified extent, as to the constitutionality of the said article exclusively insofar as this article regulates the application of this procedural coercive measure to municipal council members holding the office of mayor or deputy mayor.

2.4. Consequently, although the petitioner requests an investigation into the compliance of the impugned legal regulation with the Constitution insofar as, according to the petitioner, it does not establish any prohibition or any additional criteria precluding the removal of directly elected state politicians from office for an unlimited period of time, the petitioner actually requests an investigation into the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with the Constitution insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the period of their removal from this office.

3. As mentioned before, the Seimas, the petitioner, requests an investigation, to the specified extent, into the compliance of the impugned legal regulation concerning temporary removal from office with, inter alia, Paragraph 1 of Article 33 of the Constitution.

Paragraph 1 of Article 33 of the Constitution prescribes: “Citizens shall have the right to participate in the governance of their State both directly and through their democratically elected representatives, as well as the right to enter on equal terms the State Service of the Republic of Lithuania.”

The notion of state service as used in the Constitution, among other things, in Paragraph 1 of Article 33 thereof, does not encompass the office of member of the Seimas, President of the Republic, Prime Minister or minister, or judge; nor does the notion “state service” include the members of municipal councils, i.e. members of local government institutions (the Constitutional Court’s ruling of 13 December 2004).

Thus, although the petitioner requests, to the specified extent, an investigation into the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with the entire Paragraph 1 of Article 33 of the Constitution, it is clear from the petition that the petitioner has had doubts regarding the compliance of the legal regulation consolidated in the said article of the CCP only with the provision “Citizens shall have the right to participate in the governance of their State [...] through their democratically elected representatives” of Paragraph 1 of Article 33 of the Constitution.

4. The Seimas, the petitioner, also requests, to the specified extent, an investigation into the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with Paragraph 1 of Article 48 of the Constitution.

Paragraph 1 of Article 48 of the Constitution prescribes: “Everyone may freely choose a job or business, and shall have the right to have proper, safe, and healthy conditions at work, as well as to receive fair pay for work and social security in the event of unemployment.”

Although the petitioner requests, to the specified extent, an investigation into the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with the entire Paragraph 1 of Article 48 of the Constitution, it is clear from the petition that the petitioner has had doubts regarding the compliance of the legal regulation consolidated in the said article of the CCP only with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

5. Consequently, in the constitutional justice case at issue, subsequent to the petition of the Seimas, the petitioner, the Constitutional Court will investigate whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the period of their removal from this office, is in conflict with the provision “Citizens shall have the right to participate in the governance of their State [...] through their democratically elected representatives” of Paragraph 1 of Article 33, the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petition of the Seimas, the petitioner, the Constitutional Court is, to the specified extent, investigating the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP with the Constitution.

2. On 14 March 2002, the Seimas adopted the Republic of Lithuania’s Law on the Approval, Entry into Force, and Implementation of the Code of Criminal Procedure. By means of Article 1 of this law, the Seimas approved the Code of Criminal Procedure of the Republic of Lithuania. Under Article 2 of this law, the date of the entry into force of the CCP had to be established by means of a separate law.

On 29 October 2002, the Seimas adopted the Republic of Lithuania’s Law on the Procedure for the Entry into Force and Implementation of the Criminal Code, as Approved by Law No VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Approved by Law No IX-85 of 14 March 2002, and the Code of the Enforcement of Punishments, as Approved by Law No IX-994 of 27 June 2002, where the Seimas, inter alia, established that the CCP would come into effect as from 1 May 2003 (Article 1) and that, upon the entry into force of the new CCP, the previous CCP would become no longer valid (Paragraph 2 of Article 47).

The CCP was amended and/or supplemented on more than one occasion, inter alia, by means of the Republic of Lithuania’s Law Supplementing the Code of Criminal Procedure with Article 31 and Amending and Supplementing Articles 18, 21, 38, 55, 64, 78, 81, 102, 112, 121, 125, 134, 135, 136, 137, 142, 151, 157, 168, 170, 176, 178, 181, 342, 348, 389, 418, and 440 of this Code. This law came into force on 1 October 2010 (with a certain exception) and, among other things, amended Article 157 of the CCP, which is impugned by the petitioner to the specified extent.

2.1. As mentioned before, Article 157 “Temporary Removal from Office or the Temporary Suspension of the Right to Engage in a Certain Activity” (wording of 14 March 2002 as amended on 21 September 2010) of Chapter XII “Other Procedural Coercive Measures” of the CCP, which is impugned in the constitutional justice case at issue to the specified extent, prescribes the following:

1. In the course of an investigation of criminal acts, upon the request of the prosecutor, a pretrial judge shall have the right, by adopting an order, to temporarily remove the suspected person from office or to temporarily suspend his/her right to engage in a certain activity if this is necessary for the speedier and more impartial investigation of the criminal act or for preventing the possibility for the suspected person to commit new criminal acts. The order on the temporary removal of the suspected person from office shall be sent to the employer for enforcement.

2. Temporary removal from office or the temporary suspension of the right to engage in a certain activity may not exceed six months. Where necessary, the application of this measure may be extended for up to three additional months. The number of extensions shall be unlimited.

3. An order on the temporary removal of the suspected person from office or on the temporary suspension of his/her right to engage in a certain activity, as well as an order on extending the term of the application of the said measure, may be appealed against to a higher court by the suspected person or his/her defence counsel within seven days of the day of the announcement of the order to the suspected person. A ruling adopted by the said court shall be final and not subject to appeal.

4. After the case is referred to a court, a decision regarding temporary removal from office or the temporary suspension of the right to engage in a certain activity shall be adopted by the court before which the case has been brought.

5. In the course of a pretrial investigation, the prosecutor or, after the case is referred to a court, the court must revoke the imposed temporary removal from office or the temporary suspension of the right to engage in a certain activity once this measure becomes no longer necessary.”

2.1.1. Thus, the impugned legal regulation of temporary removal from office, as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, among other things:

specifies the subjects authorised to adopt a decision on applying the procedural coercive measure in question and on extending its application: only a pretrial judge or a court (after the case is referred to it) may, by adopting an order, temporarily remove the suspected (accused) person from office and extend the application of the imposed measure;

sets out the aims underlying the application of temporary removal from office: to investigate a criminal act in the speedier and more impartial manner or to prevent the suspected person from the possibility of committing new crimes;

sets the criterion of necessity, which must be taken into account in deciding on the application (extension of the application) of this procedural coercive measure: temporary removal from office may be applied only where this measure is necessary; at the same time, the obligation is established for the prosecutor (in the course of the pretrial investigation) and the court (after the case is referred to it) to revoke the imposed temporary removal from office once this measure becomes no longer necessary;

sets the requirements for the duration of the application of this procedural coercive measure: normally, temporary removal from office may not exceed six months; it is provided that, where necessary, the application of this measure may be extended for up to three additional months; the number of extensions is not limited;

provides for the possibility of lodging a complaint before a higher court against an order on temporary removal from office or an order on the extension of the application of this measure.

2.1.2. In order to systemically interpret the legal regulation regarding temporary removal from office, as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, it should also be noted that account must be taken of the above-mentioned aims underlying the application of temporary removal from office not only when this procedural coercive measure is applied, but also when a decision is made on the extension of its application, as well as when the obligation is fulfilled to revoke temporary removal from office once this measure becomes no longer necessary: the subjects specified in the law, when deciding on imposing temporary removal from office and extending its application, and/or when assessing the necessity for this procedural coercive measure, must give consideration as to whether it is necessary to apply (continue to apply) this measure in order to achieve the speedier and more impartial investigation of a criminal act or in order to prevent the suspected person from the possibility of committing new crimes.

2.1.3. In this context, it needs to be mentioned that, in the rulings of the Supreme Court of Lithuania, which develops the uniform case law of the courts of general jurisdiction, it has been interpreted that the grounds for the application and appropriateness of the procedural coercive measure of temporary removal from office as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP are determined by the nature of the duties held by the suspect (the person accused or standing trial) and the nature of a crime of which he/she is suspected (accused): where the possibly committed criminal act is related to the use of the official authority exercised by the suspected (accused) person, this circumstance may imply the need to remove this person from office (e.g. the rulings of 13 November 2015 and 18 December 2015 of a panel of the Civil Division of the Supreme Court of Lithuania in civil cases no 3K-3-572-969/2015 and no e3K-3-670-378/2015, respectively).

2.2. In order to reveal certain additional particularities in relation to the procedure governing the application of procedural coercive measures, including temporary removal from office, the following provisions of the CCP should also be mentioned:

procedural coercive measures must be applied exclusively in cases where they are indispensable for achieving the necessary aims of the proceedings; the application of any procedural coercive measure must immediately be discontinued once the measure becomes no longer necessary; when procedural coercive measures are applied, it is prohibited to use violence, to threaten, or to take actions offending human dignity or damaging human health; it is permitted to use physical force only to the extent necessary to remove obstacles preventing the proceedings from being conducted (Paragraphs 1 and 2 of Article 11 “Compliance with the Principle of Proportionality during the Application of Procedural Coercive Measures and the Conduct of Investigative Actions”);

after acquainting himself/herself with a case and ascertaining that there is no impediment for the court to consider the case, a judge refers the case for hearing in a trial; by the same order, the judge decides on imposing, changing, or revoking other procedural coercive measures with respect to the accused (Paragraphs 1 and 4 of Article 233 “The Referral of a Case for Hearing in a Trial”).

2.2.1. In summarising the legal regulation in question from the aspect relevant to the constitutional justice case at issue, inter alia, in the context of the provisions of the impugned Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, it should be noted that:

the application of procedural coercive measures, including temporary removal from office, must be compliant with the principle of proportionality: these measures may be imposed only where they are indispensable in order to achieve the necessary aims of the proceedings; the application of the imposed procedural coercive measures must immediately be discontinued once such measures become no longer necessary;

compared to Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, the provisions of Article 233 of the CCP consolidate the additional guarantees ensuring that the appropriateness of the application, inter alia, of another procedural coercive measure is additionally assessed before referring the case for hearing in a trial: before adopting a decision on the referral of a case, a judge must assess the necessity of other procedural coercive measures and decide on whether to impose, change, or revoke them.

2.2.2. In this context, it needs to be mentioned that, the Supreme Court of Lithuania has noted in its rulings that the principle of proportionality, inter alia, consolidated in Article 11 of the CCP and establishing the duty of responsible law-enforcement officials to apply procedural coercive measures only in those cases where they are indispensable in order to achieve the necessary aims of the proceedings, as well as their duty to immediately discontinue the application of any procedural coercive measure once it becomes no longer necessary, also implies that the fact of criminal prosecution as such does not justify the application of procedural coercive measures (e.g. the rulings of 13 November 2015 and 18 December 2015 of a panel of the Civil Division of the Supreme Court of Lithuania in civil cases no 3K-3-572-969/2015 and no e3K-3-670-378/2015, respectively).

2.3. In the context of the constitutional justice case at issue, separate mention should be made of the following provisions of Article 32 “Particularities of Criminal Proceedings Against Persons Who Have Immunity from Criminal Liability under the Laws of the Republic of Lithuania or Norms of International Law” (wording of 21 June 2011) of the CCP:

criminal proceedings against a person who has committed a crime but may be held criminally liable only with the consent of a competent institution may be instituted, but such a person may not be issued a notice of suspicion, may not be questioned as a suspect, may not be declared a suspect, and may not be detained or have his/her liberty restricted otherwise; such a person may be subject to other procedural coercive measures insofar as this is not prohibited under the laws of the Republic of Lithuania (Paragraph 1);

if, upon the completion of all permissible procedural actions, there is no consent of the competent institution to hold a person criminally liable, the criminal proceedings must be discontinued; criminal proceedings may be reopened upon the consent of the competent institution to hold the person criminally liable, or upon the necessity to carry out procedural actions that are not prohibited under the laws of the Republic of Lithuania (Paragraph 2).

2.3.1. Thus, Article 32 (wording of 21 June 2011) of the CCP lays down, among other things, the particularities of criminal proceedings applicable to persons who have immunity from criminal liability under the laws of the Republic of Lithuania: irrespective of the fact that criminal proceedings may be instituted against these persons, they may not, among other things, be considered suspects, be detained, or have their liberty restricted otherwise, unless the consent of the competent institution for doing so is given; other procedural coercive measures may be applied against these persons, among other things, insofar as such application is not prohibited under the laws of the Republic of Lithuania.

2.3.2. In the context of the constitutional justice case at issue, the provisions of Article 32 (wording of 11 June 2011) and Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP should also be interpreted in the light of the legal regulation consolidating the status of a municipal council member holding the office of mayor or deputy mayor.

2.3.2.1. In the context of the petition at issue, it should be mentioned that, in the Law on Local Self-Government (wording of 15 September 2008), whose purpose is to establish, among other things, the procedure governing the formation and activities of municipal institutions with a view to implementing the provisions of the Constitution and the European Charter of Local Self-Government, as well as to define the status of a municipal council member (Paragraph 1 of Article 2), there are no provisions concerning the immunity of a municipal council member holding the office of mayor or deputy mayor from criminal liability, i.e. these as well as other municipal council members are not granted such immunity under the law.

It also needs to be mentioned that Paragraph 8 of Article 19 “Mayors and Deputy Mayors” (wording of 26 June 2014) of the Law on Local Self-Government (wording of 15 September 2008) consolidates the possibility of removing the mayor from office by a majority vote of all municipal council members if official allegations are made against him/her of having committed a crime. Thus, the said legal regulation as laid down in the Law on Local Self-Government (wording of 15 September 2008) provides for the possibility of removing a municipal council member who is holding the office of mayor upon the emergence of the grounds specified in the law, i.e. official allegations of having committed a crime. In the context of the constitutional justice case at issue it should be noted that, on the grounds and under the procedure provided for in Paragraph 8 of Article 19 (wording of 26 June 2014) of the Law on Local Self-Government (wording of 15 September 2008), a municipal council member holding the office of mayor may be subject to removal whose nature is different from that of temporary removal established under Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP: in contrast to the impugned legal regulation, on the grounds provided for in the Law on Local Self-Government (wording of 15 September 2008), a municipal council member holding the office of mayor may be removed from office by a majority vote of municipal council members, and this measure of political influence may be applied independently of the aims or course of the criminal proceedings.

2.3.2.2. While interpreting the provisions of Article 32 (wording of 11 June 2011) and Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP in the light of the status of a municipal council member holding the office of mayor or deputy mayor as laid down under the above-mentioned provisions of the Law on Local Self-Government (wording of 15 September 2008), it should be noted that:

the particularities of criminal proceedings specified in Article 32 (wording of 11 June 2011) of the CCP do not apply to a municipal council member holding the office of mayor or deputy mayor;

without any reservations, a municipal council member holding the office of mayor or deputy mayor is subject to the legal regulation of temporary removal from office as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010).

2.4. In the context of the arguments provided by the petitioner in the constitutional justice case at issue, separate mention should also be made of a legal regulation laid down in the CCP in relation, among other things, to the duration of criminal proceedings and the guarantees of the consideration of a case within the shortest possible time limits:

with a view to protecting the rights and freedoms of an individual and a citizen and the interests of society and the state, criminal proceedings are aimed at the prompt and thorough disclosure of criminal acts and the proper application of laws in order that a person who has committed a criminal act is punished justly and no one innocent is sentenced (Paragraph 1 of Article 1);

any person facing charges of having committed a criminal act has the right that his/her case be considered within the shortest possible time limits (Paragraph 5 of Article 44);

in every case where the elements of a criminal act transpire, a prosecutor and pretrial investigation establishments must, within their competence, take all the measures provided for by laws in order that an investigation is carried out and the criminal act is disclosed within the shortest possible time (Article 2);

the head of a pretrial investigation establishment or its division has the duty, within his/her competence, to organise the activity of the pretrial investigation establishment or the respective division and control the procedural activity of pretrial investigation officials so that an investigation is carried out and a criminal act is disclosed within the shortest possible time (Paragraph 3 of Article 172 (wording of 21 June 2011));

the following time limits for conducting a pretrial investigation are established: a pretrial investigation must be carried out within the shortest possible time limits, which may not be longer than: three months in the case of a criminal offence; six months in the case of a minor, less serious, or negligent crime; and nine months in the case of a serious or particularly serious crime; upon the request of the prosecutor who directs the pretrial investigation, there is the possibility of extending the time limits in accordance with the prescribed procedure on the grounds of the complexity or large volume of the case, or other important circumstances (Paragraphs 1 and 2 of Article 176 (wording of 21 September 2010)); if a pretrial investigation lasts for an excessively long period of time, it can be terminated due to its excessive duration, i.e. upon the receipt of a complaint by the suspected person or his/her defence counsel, the pretrial investigation judge may adopt, among other things, the decision to terminate the pretrial investigation (Paragraph 3 of Article 176 (wording of 21 September 2010) and Item 3 of Paragraph 3 of Article 215);

a suspected person has the right to file a complaint against the acts and decisions of the pretrial investigation official, prosecutor, or pretrial investigation judge (Paragraph 4 (wording of 15 May 2014) of Article 21 (wording of 10 April 2003));

a first instance court is under the duty to consider a case within the shortest possible time: the court must take care to ensure that a criminal case is considered within the shortest possible time, and it must seek to consider a case with as few adjournments of a trial as possible (Paragraph 1 of Article 2421 “The Duty to Consider a Case within the Shortest Possible Time” (wording of 13 March 2014));

the appeal court has the duty to consider a case within the shortest possible time (Paragraph 6 (wording of 28 June 2007) of Article 320); the following legal regulation is laid down regarding the duration of the consideration of a case in the appeal court: a case must be decided on the day specified by the first instance court (not earlier than within one month of the day of sending the case (including the received complaints and responses to them) to the appeal court; if a case is particularly complicated, or if there are other exceptional circumstances, the president of the Court of Appeal of Lithuania, the president of the regional court, or the chairperson of the Division of Criminal Cases may assign the consideration of a case for a day other than indicated by the first instance court, but not later than within one month (Article 321)).

In summing up the above-mentioned legal regulation laid down in the CCP, it should be noted that the law consolidates the right of any person suspected (accused) of having committed a criminal act to the shortest possible proceedings, and provides for the guarantees of implementing this right:

prosecutors and pretrial investigation officials are under the duty to take all the measures provided for by the law in order that an investigation is carried out and a criminal act is disclosed within the shortest possible time; the court (both of the first and appellate instance) has the general duty to consider a case within the shortest possible time limits;

the requirements are consolidated for the duration of certain individual stages of criminal proceedings (pretrial investigation and the consideration of a case under the appeal procedure), while the possibility of extending the established procedural time limits is applicable only under exceptional circumstances according to the procedure provided for by the law.

3. In the context of the constitutional justice case at issue, in order to sum up, from the aspect impugned by the petitioner, the indicated legal regulation, inter alia, laid down in the CCP, it should be held that:

the provisions of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regulate temporary removal from office; the application of this procedural coercive measure is based on the aims of this measure, which are specified in the law – to investigate a criminal act in the speedier and more impartial manner or to prevent the suspected person from the possibility of committing new crimes; these aims must provide the grounds for adopting a decision on applying this procedural coercive measure, extending its application, or revoking the imposed temporary removal from office;

the application of temporary removal from office must be compliant with the principles of necessity and proportionality: temporary removal from office may be applied only if it is necessary; the authorised subjects have the duty to apply this procedural coercive measure only where, without applying it, it would be impossible to achieve the necessary aims of the proceedings; the said authorised subjects must discontinue the application of this measure as soon as it becomes no longer necessary; to specify this general duty in greater detail, the law consolidates the relevant duties of subjects authorised to adopt a decision on applying, extending, or discontinuing temporary removal from office (the duty, while adopting such decisions, to assess the appropriateness of temporary removal from office in each concrete case; the duty to revoke temporary removal from office once this procedural coercive measure becomes no longer necessary); the law also consolidates the provisions ensuring that the appropriateness of the application of the imposed procedural coercive measure of temporary removal from office is reassessed in the course of criminal proceedings;

the CCP provides for the particularities of criminal proceedings with respect to persons who have immunity from criminal prosecution under the laws of the Republic of Lithuania; these particularities do not apply to municipal council members holding the office of mayor or deputy mayor; without any reservations, municipal council members holding the office of mayor or deputy mayor are subject to the legal regulation of temporary removal from office as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP;

Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP lays down, inter alia, the requirements for the duration of the application of the procedural coercive measure in question: normally, temporary removal from office must not exceed six months; it is provided that the application of this measure may be extended for up to three additional months (the number of extensions is not limited);

the CCP provides for the possibility of filing a complaint against any decision of the authorised subjects in connection with the application of temporary removal from office, inter alia, in connection with the application or extension of the application of this procedural coercive measure;

the law lays down the guarantees for implementing the right of a person suspected (accused) of having committed a criminal act to the shortest possible proceedings (prosecutors and pretrial investigation officials have the duty to take all the measures provided for by the law in order that an investigation is carried out and a criminal act is disclosed within the shortest possible time; the court (both of the first and appellate instance) has the duty to consider a case within the shortest possible time limits; the requirements are consolidated for the duration of certain individual stages of criminal proceedings, and the possibility of extending the established procedural time limits is applicable only under exceptional circumstances according to the procedure provided for by the law; a suspected (accused) person has the right to file a complaint against the decisions adopted (or actions taken) with respect to him/her by law-enforcement institutions).

III

1. As mentioned before, in the constitutional justice case at issue, the Constitutional Court is investigating, to the specified extent, whether the legal regulation consolidated in the CCP regarding one of the procedural coercive measures, i.e. temporary removal from office, in terms of its application with regard to municipal council members holding the office of mayor or deputy mayor is in compliance with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33, the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

2. As held by the Constitutional Court on more than one occasion, the constitutional principle of a state under the rule of law is a universal principle upon which the entire legal system of Lithuania and the Constitution itself are based; this principle should be interpreted inseparably from the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution; this principle is especially broad and comprises a wide range of various interrelated imperatives; its content is apparent in various provisions of the Constitution.

2.1. The Constitutional Court has noted that the striving for an open, just, and harmonious civil society and a state under the rule of law, as established in the Preamble to the Constitution, implies that it is obligatory to seek to ensure the security of each person and all society against criminal attempts (inter alia, the Constitutional Court’s rulings of 8 May 2000, 16 January 2006, 28 May 2010, and 4 June 2012); the obligation of the state, which stems from the Constitution, to ensure the security of each person and all society against criminal attempts implies not only the right and duty of the legislature to define criminal acts and establish criminal liability for them by means of laws, but also its right and duty to regulate the relations connected with the disclosure and investigation of criminal acts and with the consideration of criminal cases, i.e. its right and duty to regulate criminal procedure relations (inter alia, the Constitutional Court’s ruling of 16 January 2006); criminal procedure norms are aimed at creating the conditions for protecting society by lawful means against criminal acts (the Constitutional Court’s ruling of 8 May 2000).

2.1.1. In the context of the constitutional justice case at issue, consideration should be given to the provisions of the official constitutional doctrine that were formulated in the Constitutional Court’s ruling of 16 January 2006. These provisions reveal, among other things, that the Constitution gives rise to the requirements that must be complied with in the course of regulating criminal procedure relations by means of a law:

criminal procedure relations must be regulated by law in such a way that the legal preconditions would be created for speedily disclosing and thoroughly investigating criminal acts, justly punishing the persons who committed criminal acts (or resolving the issue of their criminal liability otherwise on the basis of the law), and ensuring that no one who is innocent is sentenced; it is necessary to seek to ensure the protection of the rights of persons who suffered from criminal acts and to avoid any unreasonable restriction of the rights of persons who committed criminal acts; the legal regulation of criminal procedure should not create any preconditions for delaying the investigation of criminal acts or the consideration of criminal cases, nor should it create any preconditions for participants in criminal proceedings to abuse their procedural or other rights;

when regulating criminal procedure relations, the legislature has broad discretion; for instance, the legislature may establish, by means of a law, the particularities of criminal proceedings in the investigation of certain criminal acts and/or in the consideration of the criminal cases of individual categories, inter alia, different rules of the pretrial investigation of certain criminal acts, the specific features of the legal status of participants in criminal proceedings, etc.; however, when implementing the said discretion, the legislature must pay regard to the norms and principles of the Constitution;

under the Constitution, a legal regulation must be such that it would treat in an equal manner those participants in criminal proceedings who have the same procedural legal status; thus, those participants in criminal proceedings who have the same procedural status must also have the same rights and duties, unless there are differences of such a nature and extent that objectively justify their unequal treatment; otherwise, the constitutional principles of a state under the rule of law and the equality of the rights of persons would be deviated from;

under the Constitution, inter alia, Paragraph 1 of Article 30 thereof, the regulation of criminal procedure relations may in no way violate the constitutional right of a person to apply to a court; the legislature must regulate criminal procedure relations by law in such a way that the subjects of criminal procedure relations who believe that their rights are violated would have the right to defend their rights in a court regardless of their legal status in criminal proceedings.

2.1.2. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, implementing the duty of the state to ensure that every person and all society are protected against criminal attempts and taking account of its own obligation to regulate criminal procedure relations, the legislature must provide in a law for such procedural coercive measures applicable in criminal proceedings that would enable the speedy disclosure and thorough investigation of criminal acts and would prevent new criminal acts. The law must establish such a procedure for applying the said measures that would ensure the protection of the rights of a person against whom such measures are applied, inter alia, that would create the preconditions for this person to defend his/her rights in a court in cases where his/her rights have been violated as a result of the application of these measures.

2.2. In this context, it should be noted that, under the Constitution, the principle of proportionality, as one of the elements of the constitutional principle of a state under the rule of law, means that the measures provided for in legal acts must be in line with the legitimate objectives that are important to society, and that these measures must be necessary in order to reach the said objectives and must not restrict the rights and freedoms of the person clearly more than necessary in order to reach the said objectives (inter alia, the Constitutional Court’s rulings of 31 October 2012, 1 July 2013, and 14 February 2014); the requirement stemming from the constitutional principle of proportionality that the rights and freedoms of persons must not be limited more than necessary in order to reach the legitimate objectives that are important to society, inter alia, implies the requirement that the legislature must establish such a legal regulation that would create the preconditions for the sufficient individualisation of the limitations set on the rights and freedoms of the person: a legal regulation limiting the rights and freedoms of persons under the respective law must be such that it would create the preconditions for assessing an individual position of each person to the extent possible and, in view of all the important circumstances, would allow the specific measures that are applicable to and limit the rights of a given person to be individualised accordingly (the Constitutional Court’s ruling of 7 July 2011).

In the context of the constitutional justice case at issue, it should be noted that, when a procedure governing the application of procedural coercive measures in criminal proceedings is established in a law, regard must also be paid to the constitutional principle of proportionality: these measures must be applied only where they are aimed at the speedy disclosure and thorough investigation of criminal acts, as well as at preventing new criminal acts; such measures must be necessary to reach these objectives and may not restrict the rights or freedoms of the person concerned obviously more than necessary in order to reach the said objectives.

2.3. The constitutional principle of a state under the rule of law also implies the right of a person to the due and fair process of law (the Constitutional Court’s ruling of 16 January 2006).

The Constitutional Court has held that, in the course of regulating criminal procedure relations, regard must be paid, inter alia, to the fact that, under the Constitution, a pretrial investigation and the consideration of a criminal case in a court are different stages of criminal proceedings; during a pretrial investigation, the necessary information is collected and assessed in order to decide whether the pretrial investigation must be continued and whether, after it is completed, the criminal case must be referred to a court; in addition, the said information is collected and assessed in order that a referred case could be examined in a court and resolved in a fair manner (the Constitutional Court’s rulings of 16 January 2006 and 7 April 2011); the clarity of decisions adopted during a pretrial investigation and the substantiation of such decisions with legal arguments is an important guarantee, inter alia, of the right to fair legal proceedings and the right to judicial protection; under the Constitution, it is impermissible to establish any such legal regulation that would preclude the possibility of filing a complaint with a court against decisions adopted during a pretrial investigation (the Constitutional Court’s ruling of 16 January 2006); the right of a person to apply to a court also implies his/her right to the due process of law (inter alia, the Constitutional Court’s rulings of 13 December 2004 and 29 December 2004).

In this context, mention should be made of the following provisions of the official constitutional doctrine that were formulated, inter alia, when interpreting the constitutional right to a fair trial and, at the same time, to the due process of law:

if interpreted in the context of other norms of the Constitution, the constitutional right to a fair trial means, inter alia, that the principles and norms of criminal procedure law must be complied with in the course of considering a criminal case in court proceedings (the Constitutional Court’s ruling of 10 June 2003) so that the circumstances of committing a criminal act could be investigated comprehensively, objectively, and impartially and a fair decision would be adopted in the criminal case (the Constitutional Court’s rulings of 5 February 1999 and 16 January 2006);

the norms and principles consolidated in the Constitution imply such a model of a court as an institution administering justice where a court cannot be understood as a passive observer of court proceedings and where the administration of justice cannot depend solely on the material submitted to a court (inter alia, the Constitutional Court’s ruling of 15 November 2013).

In the context of the constitutional justice case at issue, it should be noted that the Constitution, inter alia, the constitutional principle of a state under the rule of law, gives rise to the right of a person to the due and fair process of law in criminal proceedings; the said right implies, among other things, an active role of the subjects authorised to adopt decisions on procedural coercive measures applicable in criminal proceedings, inter alia, an active role of a court as an institution administering justice, in ensuring the protection of the rights of a person against whom the said measures are applied in criminal proceedings.

3. As mentioned before, in the constitutional justice case at issue, the Constitutional Court is investigating, to the specified extent, whether the legal regulation consolidated in the CCP regarding temporary removal from office, insofar as it applies to municipal council members holding the office of mayor or deputy mayor, is in compliance with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33 of the Constitution.

3.1. The Constitutional Court has held that elections, including elections to municipal councils, are a political process (the Constitutional Court’s ruling of 17 November 2011); it is through elections that each person implements his/her right together with others to participate in the governance of their state (the Constitutional Court’s conclusion of 23 November 1996 and its rulings of 1 October 2008 and 29 March 2012), inter alia, to participate in the formation of political representative institutions (the Constitutional Court’s rulings of 11 May 2011 and 17 November 2011).

In the context of the constitutional justice case at issue, it should be noted that citizens implement their right, consolidated in Paragraph 1 of Article 33 of the Constitution, to participate together with others in the governance of their state, inter alia, through participation in the formation of municipal councils.

3.2. Paragraph 1 of Article 33 of the Constitution is connected with various other constitutional provisions (the Constitutional Court’s ruling of 29 March 2012) and, in the context of the constitutional justice case at issue, also with the provisions of Article 119 of the Constitution, which define, among other things, the constitutional status of a municipal council member.

3.2.1. Paragraph 1 of Article 119 of the Constitution provides that the right to self-government is guaranteed to the administrative territorial units of the state, which are provided for by law; this right is implemented through the respective municipal councils.

Interpreting, inter alia, the provisions of Paragraph 1 of Article 119 of the Constitution, the Constitutional Court has noted the following:

state governance and local self-government are two systems of public authority, which are consolidated in the Constitution; local self-government is self-regulation and self-action by the communities of the territorial administrative units of the state provided for by law, i.e. territorial communities that are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents) in accordance with the competence defined by the Constitution and laws; such a local public authority system, operating on the grounds of self-action, is not directly subordinate to state authority institutions, is not considered equivalent to state governance, and is formed and functions on other constitutional grounds than state power (inter alia, the Constitutional Court’s rulings of 18 February 1998 and 30 May 2003, its decision of 11 February 2004 and ruling of 9 February 2007);

the right to self-government is implemented through democratic representation; municipal councils are institutions through which the right of respective communities to self-government is implemented; municipal council members are representatives of the respective territorial community (inter alia, the Constitutional Court’s rulings of 30 May 2003 and 31 March 2010); they have the mandate of this territorial community (the Constitutional Court’s ruling of 30 May 2003).

3.2.2. In this context, it should be noted that, among other things, the principles of the election of municipal council members are consolidated in Paragraph 2 of Article 119 of the Constitution; an investigation into the compliance of the impugned legal regulation, inter alia, with this paragraph is requested by the petitioner.

Under Paragraph 2 of Article 119 of the Constitution, the members of municipal councils are elected for a four-year term, as provided for by law, from among the citizens of the Republic of Lithuania and other permanent residents of the respective administrative units by the citizens of the Republic of Lithuania and other permanent residents of these administrative units on the basis of universal, equal, and direct suffrage by secret ballot.

3.2.3. Interpreting, inter alia, the provisions of Paragraphs 1 and 2 of Article 119 of the Constitution, the Constitutional Court revealed, among other things, the following specific features in relation to the constitutional status of municipal council members (inter alia, the Constitutional Court’s rulings of 24 December 2002 and 30 May 2003):

under the Constitution, municipal council members may not be unequal in terms of their legal status;

under the Constitution, municipal council members have no immunities granted to the President of the Republic, the members of the Seimas, the members of the Government, and judges for performing functions assigned to them under the Constitution in order to implement state power, i.e. municipal council members have no inviolability of their person, and no special procedure applies to municipal council members for holding them criminally and/or administratively liable.

In this context, it should be noted that the Constitution, inter alia, Article 119 thereof, does not provide for any specific status of a municipal council member who holds the office of mayor.

3.3. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, inter alia, Paragraph 2 of Article 119 thereof, the status of elected municipal council members, as representatives of the respective territorial community, has certain specificities compared to the status of other persons who hold no mandate of any territorial community; however, municipal council members are not granted any immunities established for persons who perform certain functions while implementing state authority; inter alia, no special procedure applies to municipal council members for holding them criminally liable.

4. As mentioned before, the petitioner impugns the compliance of the legal regulation laid down in the CCP regarding temporary removal from office also with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

The Constitutional Court has held on more than one occasion that the provision of Paragraph 1 of Article 48 of the Constitution, under which everyone may freely choose an occupation or business, is a general norm (inter alia, the Constitutional Court’s rulings of 13 December 2004 and 4 November 2015); the said norm means the opportunity of everyone at his/her discretion, i.e. deciding freely on this matter, to choose a certain occupation (inter alia, the Constitutional Court’s rulings of 10 July 1996 and 13 December 2004); a person who seeks to implement his/her constitutional right to work, has the right to decide freely whether to choose an occupation in the private sector or private business, or to seek to be employed in state service (inter alia, the Constitutional Court’s rulings of 13 December 2004 and 13 August 2007); the constitutional freedom of everyone to choose an occupation or business implies the duty of the legislature to create the legal preconditions for implementing this freedom (inter alia, the Constitutional Court’s ruling of 6 February 2012).

In the context of the constitutional justice case at issue, it should be noted that the right of a person to freely choose an occupation, as consolidated in Paragraph 1 of Article 48 of the Constitution, implies the possibility of freely choosing not only an occupation or business in the area of private economic activity, but also various other work activities; this right must not be interpreted only linguistically or understood only as the right to choose an occupation; this right should also be associated with relationships arising after a person chooses an occupation and becomes engaged in it. It should be noted that the right of everyone to freely choose an occupation, as consolidated in Paragraph 1 of Article 48 of the Constitution, may be limited provided that the following conditions are observed: these limitations are established by means of a law; limitations are necessary in a democratic society in order to protect the rights or freedoms of other persons, the values consolidated in the Constitution, or constitutionally important objectives; limitations do not deny the nature or essence of the rights or freedoms; and the constitutional principle of proportionality is observed (inter alia, the Constitutional Court’s ruling of 11 December 2009 and its decision of 20 April 2010).

IV

On the compliance of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the Code of Criminal Procedure with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33, the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law

1. It has been mentioned that, in the constitutional justice case at issue, the Constitutional Court is investigating whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is in conflict with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33, the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48, and Paragraph 2 of Article 119 of the Constitution and the constitutional principle of a state under the rule of law.

2. As mentioned before, Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP prescribes:

1. In the course of an investigation of criminal acts, upon the request of the prosecutor, a pretrial judge shall have the right, by adopting an order, to temporarily remove the suspected person from office or to temporarily suspend his/her right to engage in a certain activity if this is necessary for the speedier and more impartial investigation of the criminal act or for preventing the possibility for the suspected person to commit new criminal acts. The order on the temporary removal of the suspected person from office shall be sent to the employer for enforcement.

2. Temporary removal from office or the temporary suspension of the right to engage in a certain activity may not exceed six months. Where necessary, the application of this measure may be extended for up to three additional months. The number of extensions shall be unlimited.

3. An order on temporary removal from office or on the temporary suspension of the right to engage in a certain activity, as well as an order on extending the term of the application of the said measure, may be appealed against to a higher court by the suspected person or his/her defence counsel within seven days of the day of the announcement of the order to the suspected person. A ruling adopted by the said court shall be final and not subject to appeal.

4. After the case is referred to a court, a decision regarding temporary removal from office or the temporary suspension of the right to engage in a certain activity shall be adopted by the court before which the case has been brought.

5. In the course of a pretrial investigation, the prosecutor or, after the case is referred to a court, the court must revoke the imposed temporary removal from office or the temporary suspension of the right to engage in a certain activity once this measure becomes no longer necessary.”

3. It has also been mentioned that the entirety of the arguments set out in the petition makes it clear that the petitioner, to the specified extent, substantiates the unconstitutionality of the legal regulation laid down in the CCP regarding temporary removal from office essentially by the following fact: since the impugned legal regulation does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, in the opinion of the petitioner, this legal regulation violates the provisions of the Constitution, inter alia, those of Paragraph 1 of Article 48, and limits the possibility for these directly elected politicians to hold the said office, as well as violates the right of citizens to participate in the governance of their state through their democratically elected representatives, as implied by the Constitution, inter alia, Paragraph 1 of Article 33 and Paragraph 2 of Article 119 thereof.

4. In deciding whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is in conflict with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33 and Paragraph 2 of Article 119 of the Constitution, it should be noted that, as mentioned before:

citizens implement their right, consolidated in Paragraph 1 of Article 33 of the Constitution, to participate together with others in the governance of their state, inter alia, through participation in the formation of municipal councils;

under the Constitution, inter alia, Paragraph 2 of Article 119 thereof, the status of elected municipal council members, as representatives of the respective territorial community, has certain specificities compared to the status of other persons who hold no mandate of any territorial community; however, municipal council members have no immunities granted to persons who perform certain functions while implementing state authority; inter alia, no special procedure applies to municipal council members for holding them criminally liable;

the Constitution, inter alia, Article 119 thereof, does not consolidate any specific status of a municipal council member who holds the office of mayor. It should be noted that the Constitution also does not grant any specific status to a municipal council member who holds the office of deputy mayor.

4.1. Thus, under the Constitution, the status of a municipal council member who holds the office of mayor or deputy mayor does not imply any requirement that, with regard to this municipal council member, a law must establish such grounds and procedure for applying procedural coercive measures (inter alia, temporary removal from office) that would be different from those established with regard to other persons.

In this context, it should also be noted that, as mentioned before, under the Constitution, when implementing the duty of the state to ensure that every person and all society are protected against criminal attempts and taking account of its obligation to regulate criminal procedure relations, the legislature must provide in a law for such procedural coercive measures applicable in criminal proceedings that would enable the speedy disclosure and thorough investigation of criminal acts and would prevent new criminal acts; the legislature must also establish a procedure governing the application of these measures.

4.2. It has been mentioned that the provisions of Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP regulate temporary removal from office; the grounds for the application of this procedural coercive measure correspond to the aims pursued by this measure as defined in the law: to achieve the speedier and more impartial investigation of a criminal act or to prevent the possibility for a suspected person to commit new criminal acts.

It has also been mentioned that only those municipal council members who hold the office of mayor or deputy mayor fall within the area of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, i.e. under the impugned legal regulation, only the said municipal council members can be subject to the procedural coercive measure of temporary removal from office and only the said municipal council members may be respectively removed from the office of mayor or deputy mayor.

As mentioned before, the particularities of criminal proceedings as laid down in the CCP with regard to persons who have immunity from criminal liability under the laws of the Republic of Lithuania do not apply to municipal council members who hold the office of mayor or deputy mayor; without any reservations, these municipal council members are subject to the legal regulation of temporary removal from office under Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP.

Thus, the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP creates the preconditions for applying the procedural coercive measure of temporary removal from office with regard to municipal council members who hold the office of mayor or deputy mayor under the general grounds and procedure as provided for in the law.

4.3. It should be held that, having created, by means of the legal regulation laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, the preconditions for the measure of temporary removal from office to be applied under the general grounds and procedure with regard to municipal council members who hold the office of mayor or deputy mayor, the legislature has fulfilled its obligation, stemming from the Constitution, to provide in a law for the procedural coercive measures applicable in criminal proceedings, as well as for the procedure for their application, without creating any preconditions for violating the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33 and Paragraph 2 of Article 119 of the Constitution.

4.4. In the light of the foregoing arguments, the conclusion should be drawn that Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is not in conflict with the provision “Citizens shall have the right to participate in the governance of their State […] through their democratically elected representatives” of Paragraph 1 of Article 33 and Paragraph 2 of Article 119 of the Constitution.

5. It has been mentioned that, in the constitutional justice case at issue, the Constitutional Court is, inter alia, investigating whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is in conflict with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

6. It has been mentioned that, according to the petitioner, the impugned legal regulation disproportionally limits the constitutional right of a person to work: in the opinion of the petitioner, the legal regulation precluding a directly elected municipal council member who holds the office of mayor or deputy mayor from holding this office is disproportionate to the objective pursued by a democratic society to protect the state against the possible criminal acts or consequences of other dangerous offences.

7. In deciding whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is in conflict with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution, it should be noted that, as mentioned before, the right of a person to freely choose an occupation under Paragraph 1 of Article 48 of the Constitution implies the possibility of freely choosing not only an occupation or business in the area of private economic activity, but also various other work activities; this right must not be interpreted only linguistically or understood only as the right to choose an occupation; this right should also be associated with relationships arising after a person chooses a certain occupation and becomes engaged in it; the right of everyone to freely choose an occupation, as consolidated in Paragraph 1 of Article 48 of the Constitution, may be limited provided that the following conditions are observed: these limitations are established by means of a law; limitations are necessary in a democratic society in order to protect the rights or freedoms of other persons, the values consolidated in the Constitution, or constitutionally important objectives; limitations do not deny the nature or essence of the rights or freedoms; and the constitutional principle of proportionality is observed.

It has also been mentioned that, under the Constitution, when a procedure governing the application of procedural coercive measures in criminal proceedings is established by means of a law, regard must also be paid to the constitutional principle of proportionality: these measures must be applied only where they are aimed at the speedy disclosure and thorough investigation of criminal acts, as well as at preventing new criminal acts; such measures must be necessary to reach these objectives and may not restrict the rights or freedoms of the person concerned obviously more than necessary in order to reach the said objectives.

7.1. It has been mentioned that the legal regulation consolidated in the CCP, inter alia, Article 157 (wording of 14 March 2002 as amended on 21 September 2010) thereof, lays down the following requirements for the application of the procedural coercive measure of temporary removal from office:

this measure may be applied only where it is necessary to reach the aims that are specified in the law and constitute the grounds for the application of this measure (to achieve the speedier and more impartial investigation of a criminal act or to preclude the possibility for a suspected person to commit new criminal acts); these aims must be invoked both in applying this procedural coercive measure and extending its application, as well as in revoking the imposed temporary removal from office;

when temporary removal from office is applied, the criterion of necessity and the principle of proportionality must be observed: temporary removal from office may be applied only where it is necessary; the authorised subjects are obliged to apply this procedural coercive measure only where, without applying it, it would be impossible to achieve the necessary aims of the proceedings, and they must discontinue its application as soon as it becomes no longer necessary;

regard must be paid to the requirements set in the law for the length of the application of this procedural coercive measure: normally, temporary removal from office may not exceed six months; it is provided that the application of this measure may be extended for up to three additional months (the number of extensions is not limited).

As mentioned before, the CCP provides for the possibility of filing a complaint against any decision adopted by the authorised subjects regarding the application of temporary removal from office, inter alia, regarding the application of this procedural coercive measure or the extension of the time limits of its application.

It also needs to be mentioned that the law consolidates the guarantees of the implementation of the right of a person suspected (accused) of having committed a criminal act to the shortest possible proceedings (prosecutors and pretrial investigation officials have the duty to take all the measures provided for by the law in order that an investigation is carried out and a criminal act is disclosed within the shortest possible time; the court (both of the first and appellate instance) has the duty to consider a case within the shortest possible time limits; the requirements are consolidated for the duration of certain individual stages of criminal proceedings; the possibility of extending the established procedural time limits is applicable only under exceptional circumstances according to the procedure provided for by the law; a suspected (accused) person has the right to file a complaint against the decisions adopted (or actions taken) with respect to him/her by law-enforcement institutions).

7.2. Thus, the legal regulation laid down in the CCP provides for such application of temporary removal from office according to which this procedural coercive measure may be applied under the time limits determined according to the procedure defined in the law only in the event of the existence of the objectives established in the law (in order to achieve the speedier and more impartial investigation of a criminal act, or to prevent the suspected person from the possibility of committing new criminal acts) and only to the extent necessary to reach these objectives; this legal regulation also consolidates the related guarantees of the right of a person to the shortest possible legal proceedings and the right to defend his/her violated rights in a court.

It should be noted that, in the constitutional justice case at issue, there are grounds for stating that the CCP consolidates the sufficient guarantees for ensuring that the rights of a person who is subject to the procedural coercive measure of temporary removal from office, inter alia, his/her right to freely choose an occupation, are not disproportionally limited.

7.3. Consequently, the impugned legal regulation, as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, provides for such a procedure for the application of the procedural coercive measure of temporary removal from office that creates the preconditions for limiting, under the grounds and procedure established by law, the right of a person, inter alia, a municipal council member who holds the office of mayor or deputy mayor, to freely choose an occupation only inasmuch as it is necessary to reach the constitutionally important objectives – the speedier and more impartial investigation of a criminal act or preventing a suspected person from the possibility of committing new criminal acts.

It should be held that the legal regulation of the procedural coercive measure of temporary removal from office, as laid down in Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, creates no preconditions for derogating from the requirements stemming from the Constitution, inter alia, the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 thereof, in establishing limitations on the right of a person to freely choose an occupation.

7.4. In the light of the foregoing arguments, the conclusion should be drawn that Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is not in conflict with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

8. It has been mentioned that, in the constitutional justice case at issue, the Constitutional Court is, inter alia, investigating whether Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is in conflict with the constitutional principle of a state under the rule of law.

It should be noted that the doubt of the petitioner regarding the compliance of the impugned legal regulation with the constitutional principle of a state under the rule of law is substantiated by the same arguments as regarding the compliance of the impugned legal regulation with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

Having held that Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is not in conflict with the provision “Everyone may freely choose a job” of Paragraph 1 of Article 48 of the Constitution, it should be held that Article 157 (wording of 14 March 2002 as amended on 21 September 2010) of the CCP, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is not in conflict with the constitutional principle of a state under the rule of law.

9. As mentioned before, the Constitution, inter alia, the constitutional principle of a state under the rule of law, gives rise to the right of a person to the due and fair process of law in criminal proceedings; the said right implies, among other things, an active role of the subjects authorised to adopt decisions on procedural coercive measures applicable in criminal proceedings, inter alia, an active role of a court as an institution administering justice, in ensuring the protection of the rights of a person against whom the said measures are applied in criminal proceedings.

In this context, it should also be mentioned that the European Court of Human Rights, interpreting the content of the right to a fair trial, as consolidated in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, has noted that, among other things, the right to a fair trial comprises the duty of the court not only to comprehensively and exhaustively examine all those circumstances of the case that would enable an independent and impartial court to reach a fair and reasoned decision in each case, but also to adopt such a decision within the shortest time possible; courts have the duty to ensure a fair balance between the said two different aspects of the content of the right to a fair trial (among other acts of this court, the judgment of 12 October 1992 in the case of Boddaert v Belgium, application no 12919/87).

In the context of the constitutional justice case at issue, it should be noted that the law provides for such a procedure for the application of the procedural coercive measure of temporary removal from office whereby, inter alia, the preconditions are created for ensuring the protection of the rights of persons subject to this measure; thus, the duty arises for subjects authorised to adopt a decision on the application of the said measure to ensure that the rights of a concrete person subject to this procedural coercive measure are not violated. Therefore, the subjects (inter alia, a pretrial judge or a court) who have the powers to decide as to the temporary removal from office of a person must, among other things, ensure in each concrete case that this measure is applied only where it is necessary to reach the objectives established in the law (to enable the speedy disclosure and thorough investigation of criminal acts, or to prevent new criminal acts), as well as that the application of this measure does not restrict the rights or freedoms of the person any more than necessary in order to reach the said objectives.

It should be emphasised that a decision to apply temporary removal from office must be founded on reasonable arguments, which would prove the existence of the objectives and grounds specified under the law for this measure to be applied in a concrete situation; a decision to extend the application of this measure with regard to a concrete person must be based on additional substantial arguments, which would prove the necessity to extend the duration of its application.

As mentioned before, the case law of the courts of general jurisdiction clarifies that the nature of the duties held by the suspect (the person accused or standing trial) and the nature of a crime of which he/she is suspected (accused) determine the grounds and appropriateness of the application of the procedural coercive measure of temporary removal from office; therefore, in the context of the constitutional justice case at issue, it should be noted that, when deciding as to the application of this measure with regard to a municipal council member who holds the office of mayor or deputy mayor, the authorised subjects must, among other things, assess the nature of the office held by the municipal council member holding the office of mayor or deputy mayor, as well as the nature of a crime of which he/she is suspected (accused), since the nature of the office held and the nature of the crime are decisive in establishing the grounds and appropriateness of the application of the procedural coercive measure of temporary removal from office; the same factors – the nature of office and the nature of the crime – must also be taken into account in order to substantiate the necessity to apply the procedural coercive measure of temporary removal from office with regard to a municipal council member holding the office of mayor or deputy mayor both in cases where this measure is applied initially and where its application is extended thereafter.

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 Article 157 (wording of 14 March 2002 (Official Gazette Valstybės žinios, 2002, No 37-1341) as amended on 21 September 2010 (Official Gazette Valstybės žinios, 2010, No 113-5742)) of the Code of Civil Procedure of the Republic of Lithuania, insofar as it does not establish any prohibition precluding the removal of municipal council members from the office of mayor or deputy mayor, or any additional criteria limiting the length of their removal from this office, is not in conflict with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court: Elvyra Baltutytė
                                                                      Vytautas Greičius
                                                                      Danutė Jočienė
                                                                      Pranas Kuconis
                                                                      Gediminas Mesonis
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Dainius Žalimas