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On the names of public election committees

Case No. 10/2014

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPHS 2 AND 6 OF ARTICLE 38 OF THE REPUBLIC OF LITHUANIA’S LAW ON ELECTIONS TO THE EUROPEAN PARLIAMENT (WORDING OF 12 NOVEMBER 2013) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 13 October 2014, No. KT45-N13/2014

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, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, in its sitting, on 23 September 2014, under written procedure, considered constitutional justice case No. 10/2014 subsequent to the petition (No. 1B-11/2014) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraph 2 of Article 38 of the Republic of Lithuania’s Law on Elections to the European Parliament (wording of 12 November 2013), to the extent that, according to the petitioner, it does not provide that the rules of procedure of an election committee may specify the name of the election committee, and the provisions “When registering the election committee, following the order of registration time of the election committees at the Central Electoral Commission, the Central Electoral Commission shall assign it a letter without a diacritical mark. This letter is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament” of Paragraph 6 of the same article are not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 34 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

The petition of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

  1. According to the impugned legal regulation, a public election committee (hereinafter also referred to as an election committee) that does not enjoy the right to have its own original name and that is identified in an election according to a letter assigned to it by the Central Electoral Commission of the Republic of Lithuania is at a disadvantage if compared to the position of political parties. The name of a political party is one of its identification elements to voters, therefore, it is an important feature of an entity that is participating in an election. Such a feature is also influential on the choice of voters, i.e., on the final results of an election. In a situation where an election committee’s name consists of only one letter, it becomes more difficult for such a committee to present their individuality to voters. There may be more than one election committee, therefore, voters may face a difficulty in identifying them. Due to this reason, the legal regulation to the effect that equal participants of an election that implement their passive electoral right are granted unequal opportunities to present themselves to voters may be in conflict with the Constitution.
  2. Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law give rise to a prohibition on limiting both active and passive electoral right in an unreasonable and disproportionate manner, including the right to participate in elections to the European Parliament. The impugned legal regulation does not create the conditions for political parties and political organisations (in this case—election committees) so that they could enjoy fair competition for mandates in an election to the European Parliament, since a certain advantage has been given to political parties. The opportunities of persons entered on lists of candidates to implement their passive electoral right have been disproportionately burdened if compared to the opportunities of persons entered on lists compiled by parties. Thus, the legal regulation by which election committees are not granted the right to choose their name, whilst their name is only a letter without a diacritical mark assigned by the Central Electoral Commission, violates Paragraph 2 of Article 34 of the Constitution and the principles of democratic elections to representative institutions that are consolidated in the Constitution and are generally recognised.
  3. Paragraph 1 of Article 39 of the Charter of Fundamental Rights of the European Union consolidated one of the fundamental rights of EU citizens, which is the right to participate in elections to the European Parliament. According to this provision, every citizen of the European Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. Under Article 36 of the Republic of Lithuania’s Law on Political Parties, the right to unite in political parties is granted only to citizens of the Republic of Lithuania. Due to this reason, a proper formation of election committees and participation in elections to the European Parliament are an important legal precondition for ensuring the right of EU citizens to participate in elections to the European Parliament.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations of Seimas member Virginija Baltraitienė, a representative of the Seimas, the party concerned, were received wherein it is asserted that Paragraphs 2 and 6 of Article 38 of the Law on Elections to the European Parliament (wording of 12 November 2013), to the extent specified by the petitioner, were not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

  1. The Law on Elections to the European Parliament was adopted in an attempt to implement the following acts of EU law connected with elections to the European Parliament: Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976; Council Directive 93/109/EC of 6 December 1993; and Council Decision of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (2002/772/EC, Euratom).
  2. Citizens of the Republic of Lithuania and citizens of other Member States of the European Union who permanently reside in the Republic of Lithuania enjoy equal opportunities to submit lists of candidates who seek to participate in elections to the European Parliament; members of political parties and members of public election committees are equal entities as regards the submission of lists of candidates. The opportunities of citizens of the Republic of Lithuania and citizens of other Member States of the European Union who permanently reside in Lithuania to participate in the campaign of an election to the European Parliament are implemented by using not only a name, but also the whole-complex of rights and guarantees assured to parties and election committees. According to the valid legal regulation, the rights of and guarantees for political parties and election committees do not differ, since both entities may provide the public with information about the fields of their activity, their values, their point of view, and they thus can present themselves to society. Namely such presentation to society determines the choice of voters as regards casting their vote during the election. Thus, the voters identify the candidates not only according to the name, but also according to the lists of parties and election committees published on the Internet website of the Central Electoral Commission, also the candidates entered on such lists, the aspirations and values during declared election campaigning, and also the election programmes published by the Central Electoral Commission, whilst this means that the names of political parties and election committees, as well as assigned election numbers or letters, are only an additional identification feature. In addition, the conditions are created for voters to receive all information connected with a particular election, and to verify that they have properly identified the entity for which they are going to cast their vote. Thus, the Law on Elections to the European Parliament grants the political parties and election committees the status of equal participants.
  3. Political parties and public election committees differ in their status, the aims of establishment, and the grounds and length of their activity. There are the following essential differences between a political party and an election committee: the activity of a political party is of a continuous character, whilst an election committee is only formed for the purpose of a concrete election to the European Parliament; a political party is a legal person, whose necessary element is its name, whilst the activity of an election committee is based on the joint rules of procedure that are not related to a name. Therefore, the regulation of the names of these entities is different.

The Constitutional Court

holds that:

  1. On 20 November 2003, the Seimas adopted the Law on Elections to the European Parliament that came into force on 10 December 2003. This law established the procedure for organising and holding elections to the European Parliament (Article 1).

1.1. In its ruling of 9 November 2010, Constitutional Court noted that the Law on Elections to the European Parliament was adopted by seeking to implement the legal acts of the European Union related to elections of the European Parliament (listed in the Annex titled “Legal Acts of the European Union Implemented by This Law” to the said law), which, inter alia, prescribe that citizens of the European Union who are not nationals of the Member State of residence, but satisfy the same conditions in respect of the right to vote and to stand as candidates as that State imposes by law on its own nationals, may elect members of the European Parliament and may stand as candidates for election as members of the European Parliament; such elections are conducted on the basis of proportional representation.

1.2. According to the legal regulation consolidated in Article 36 “Nomination of Candidates” (wordings of 20 November 2003, 8 May 2008, and 12 February 2009) of the Law on Elections to the European Parliament, only political parties were allowed to nominate candidates in elections to the European Parliament after they included them in the lists of candidates.

  1. In its ruling of 9 November 2010, the Constitutional Court recognised that Article 36 “Nomination of Candidates” (wordings of 8 May 2008 and 12 February 2009) of the Law on Elections to the European Parliament, to the extent that it had been established that citizens of the Republic of Lithuania as well as citizens of other Member States of the European Union, permanently residing in Lithuania, may stand for election for the European Parliament only if they are entered on the lists of candidates to Members of the European Parliament, which are drawn up by political parties, was in conflict with Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.

In its ruling of 9 November 2010, the Constitutional Court held that, under the Constitution, the legal regulation entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions is not allowed; the legislature, having chosen only the proportional electoral system, must entrench, in the law, not only the right of political parties to participate in elections, but also establish what other collective entities can participate and have the right to nominate candidates, by presenting lists of their candidates, in elections to representative political institutions. The Constitutional Court drew attention to the fact that the Constitution consolidates not only the institute of political parties, but also that of political organisations: the constitutional concept of political organisations encompasses the organisations founded for the satisfaction of various socially important needs and, alongside, have political aspirations, inter alia, to participate in elections to political representative institutions; the same concept also encompasses such organisations that are founded for the purpose of implementing certain political aspirations, among other things, for participating in a concrete election, inter alia, to the European Parliament.

In the same ruling, while emphasising the significance of political organisations in forming political representative institutions, the Constitutional Court noted that, if the legislature, having chosen the proportional electoral system alone, established the legal regulation entrenching the exclusive right of political parties (their members or candidates supported by political parties) to participate in the formation of representative political institutions, it would also mean that the opportunities of the implementation of the passive electoral right, deriving from the Constitution, of the citizens, who are not members of political parties and are not tied by any ties with any political party, would be burdened in a disproportionate manner in comparison with the opportunities of the persons who are members of political parties or who tied themselves to some political party with ties that are other than formal membership; such legal regulation would unreasonably eliminate other collective entities, i.e. political organisations, from participation in the elections to representative political institutions, inter alia, from nomination of candidates by drawing up lists of candidates in the elections to these institutions; such legal regulation would create preconditions for violating the imperatives of justice and proportionality stemming from the Constitution, inter alia, from the constitutional principle of a state under the rule of law, and for disregarding the principles of electoral law stemming from the Constitution.

  1. On 12 November 2013, the Seimas adopted the Republic of Lithuania’s Law Amending the Law on Elections to the European Parliament by which the Law on Elections to the European Parliament was set forth in its new wording.

3.1. According to the legal regulation consolidated in Article 37 “Nomination of Candidates” of the Law on Elections to the European Parliament (wording of 12 November 2013) (hereinafter also referred to as the Law), candidates may be nominated by political parties and public election committees by presenting lists of candidates.

3.2. Article 38 “Election Committee” of the Law, the provisions of Paragraphs 2 and 6 whereof are impugned by the petitioner, provides:

“1. The number of voters comprising an election committee must be at least twofold the number of members of the European Parliament to be elected in the Republic of Lithuania. The same voter may be a member of one election committee only. The election committee shall be registered by the Central Electoral Commission. Receipt of documents for registration of an election committee shall start from the moment the date of an election to the European Parliament is announced and end 85 days before the election.

  1. An election committee shall be established with the aim of participating in a particular election to the European Parliament by concluding the rules of procedure of the election committee, which are signed by all members of the election committee. Model rules of procedure shall be approved by the Central Electoral Commission. The rules of procedure of an election committee shall include:

1) members of the election committee (name, surname, personal number, declared place of residence entered on the Resident’s Register of the Republic of Lithuania, contact details: phone and fax numbers, e-mail address);

2) a representative (coordinator) of the election committee and his or her powers;

3) the place of residence and contact details of the representative (coordinator) of the election committee: phone and fax numbers, e-mail address;

4) decision-making procedure of the election committee;

5) property and non-property obligations of the members of the election committee with respect to their activities in the committee, their fulfilment procedure and deadlines.

  1. At the meeting, the election committee shall:

1) adopt and amend the rules of procedure, which themselves or their amendments come into force after their registration with the Central Electoral Commission;

2) elect and replace the representative (coordinator) of the election committee;

3) decide on the nomination of the list of candidates, may decide on the election programme;

4) decide on the termination of the election committee’s activities, if the election committee’s activities are terminated by the end of a political campaign.

  1. The meeting of the election committee shall be valid if more than two-thirds of the members of the election committee participate in it. Decisions shall be taken by a majority vote of all of the election committee members.
  2. The election committee shall have a representative (coordinator) of the election committee elected from the members of the election committee. The representative (coordinator) of the election committee shall:

1) implement the decisions of the election committee meeting;

2) conclude agreements on behalf of the committee, provide reports to the general meeting of the election committee, represent the election committee in state and municipal institutions and establishments;

3) open a bank account to be used as a bank account of the political campaign and conclude a property trust agreement with the political campaign treasurer.

  1. The election committee may start its activities from the day of its registration with the Central Electoral Commission. When registering the election committee, following the order of registration time of the election committees at the Central Electoral Commission, the Central Electoral Commission shall assign it a letter without a diacritical mark. This letter is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament. The decision on the registration of the election committee or the amendment of the rules of procedure of the election committee shall be adopted by the Chairperson of the Central Electoral Commission or a member authorised by him or her not later than within three working days after the receipt of the request and the rules of procedure. If shortcomings of the documents are identified, the committee representative (coordinator) shall be offered to remove them within three days. Refusal to register the election committee or the amendment of its rules of procedure must be reasoned. If the election committee does not agree with the adopted decision, the decision may be appealed against to the Central Electoral Commission within five working days from the date of its adoption. The Central Electoral Commission must examine the complaint within three working days. The decision of the Central Electoral Commission may be appealed against to the Supreme Administrative Court of Lithuania not later than within five working days from its adoption. An appeal must be investigated not later than within 48 hours of the receipt thereof. The decision of the Supreme Administrative Court of Lithuania shall become effective from its pronouncement.
  2. Activities of the election committee shall end when:

1) the election committee at the general meeting decides to terminate its activities:

2) in accordance with the procedure laid down in this Law, the Central Electoral Commission adopts a decision to revoke registration of the election committee if the committee members remain fewer that the minimum specified in Paragraph 1 of this Article; the election committee fails to collect voters’ signatures provided for in Paragraph 3 of Article 39 of this Law; the interests of the election committee or its nominated candidate seriously violated this Law or the Law on Funding of, and Control Over Funding of, Political Parties and Political Campaigns; the registration of a participant of the political campaign is refused or revoked;

3) the political campaign ends;

4) the election committee withdraws the electoral application documents.”

3.3. Thus, after the Law on Elections to the European Parliament had been set forth in its new wording of 12 November 2013 and after it had established that the right not only for political parties, but also for public election committees (which can be comprised of citizens of the Republic of Lithuania and citizens of other Member States of the European Union, who are not members of political parties and who are not tied with them by any other non-formal-membership ties) to nominate candidates in elections to the European Parliament, the said law implemented the constitutional requirement, disclosed in the Constitutional Court’s ruling of 9 November 2010, that, if the legislature chooses only the proportional electoral system, citizens of the Republic of Lithuania and citizens of other Member States of the European Union who permanently reside in Lithuania must be granted an opportunity to stand in elections to the European Parliament and to be entered on lists of candidates made by entities other than political parties.

  1. As mentioned before, the petitioner, inter alia, requests an investigation into whether Paragraph 2 of Article 38 of the Law, to the extent that, according to the petitioner, it does not provide that the rules of procedure of an election committee may specify the name of the election committee, is not in conflict with Paragraph 1 of Article 29, Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law. The doubts of the petitioner are substantiated by the petitioner’s interpretation of Paragraph 2 of Article 38 of the Law, according to which the rules of procedure of an election committee may not specify the name of that election committee.

4.1. Paragraph 2 of Article 38 of the Law, inter alia, provides as to what data must be specified in the rules of procedure of an election committee that are drawn up in the course of the founding of such a committee; the name of an election committee is not mentioned among such data.

While construing Paragraph 2 of Article 38 of the Law, it should be noted that it enumerates the necessary elements of the rules of procedure of an election committee that must be specified in such rules; the Central Electoral Commission must also include such elements into model rules of procedure that are approved by the said commission. However, it does not mean that in the course of the founding of an election committee no agreement can be reached on other elements of the rules of procedure of an election committee, which are not mentioned in this paragraph, inter alia, on the name of an election committee; the Law does not provide that the mere fact that the rules of procedure of an election committee contains the name of such a committee gives the right to the Central Electoral Commission to refuse to register this election committee. Thus, the fact that Paragraph 2 of Article 38 of the Law does not explicitly mention the name of an election committee does not mean that the indication of the name of an election committee in its rules of procedure is prohibited.

It should be held that Paragraph 2 of Article 38 of the Law does not contain any such legal regulation to the effect that the rules of procedure of an election committee may not specify the name of such an election committee, i.e., it does not contain the legal regulation the investigation into the compliance of which with the Constitution is requested by the petitioner. Thus, in this part of the constitutional justice case at issue regarding the compliance of Paragraph 2 of Article 38 of the Law with the Constitution, a matter for investigation is absent.

4.2. Paragraph 2 of Article 80 (regulating refusals of the Constitutional Court to consider inquiries) of the Law on the Constitutional Court provides that, if in the course of the consideration of an inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the instituted legal proceedings on the grounds thereof. This provision of the Law on the Constitutional Court is also applicable mutatis mutandis to the consideration of petitions requesting an investigation into the compliance of a legal act with the Constitution (or with another legal act of superior power) and to the adoption of corresponding decisions (inter alia, the Constitutional Court’s rulings of 21 September 2006, 6 September 2007, 29 June 2012, and 15 February 2013).

Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, if the grounds for the refusal to consider a petition have been established after the commencement of the consideration of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

4.3. In the light of the foregoing arguments, the part of the constitutional justice case at issue regarding the compliance of Paragraph 2 of Article 38 of the Law with Paragraph 1 of Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law should be dismissed.

  1. The petitioner also impugns the compliance of the provisions of Paragraph 6 of Article 38 of the Law, according to which, while registering an election committee, the Central Electoral Commission assigns this committee a letter, which is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament, with Paragraph 1 of Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In construing this legal regulation established in Paragraph 6 of Article 38 of the Law, it should be noted that, according to such legal regulation, regardless of the fact that an election committee has chosen its name and specified it in its rules of procedure, this election committee must participate in the electoral process not under such a name, but under the letter that has been assigned to it by the Central Electoral Commission in the course of its registration.
  3. The Constitutional Court has held that, under the Constitution, when regulating election relations by law, one is obliged to ensure an equal active electoral right of all the voters (the right to vote, i.e. to exercise the active electoral right), as well as an equal passive electoral right of all the candidates (the right to be registered in an election as a candidate, i.e. the right to stand for election) (the Constitutional Court’s rulings of 11 May 2011, 17 November 2011, and 29 March 2012).

7.1. The provision of Paragraph 2 of Article 34 of the Constitution that the right to stand for election shall be established by the Constitution of the Republic of Lithuania and by the election laws consolidates the so-called passive electoral right, i.e. the opportunity for a person to stand as a candidate for a member of a particular elective institution of public authority under the procedure established by means of the Constitution and election laws, thus, it consolidates the opportunity to seek to be elected (the Constitutional Court’s rulings of 1 October 2008, 9 November 2010, and 29 March 2012).

7.2. In emphasising the importance of elections to representative institutions, the Constitutional Court has held on more than one occasion that, in a constitutional democracy, special requirements are raised for the formation of political representative institutions; such institutions may not be formed in such a way that would raise doubts as to their legitimacy and legality, inter alia, as to whether the principles of a democratic state under the rule of law were not violated in the course of the election of persons to representative political institutions; elections may not be regarded as democratic, nor their results as legitimate and legal, if the elections are held by trampling on the principles of democratic elections established in the Constitution and violating democratic electoral procedures (the Constitutional Court’s conclusion of 5 November 2004, its rulings of 1 October 2008, 9 November 2010, and 29 March 2012). In consolidating the provisions of the electoral right by means of a law, the legislature is obliged to follow these imperatives of legal regulation that are consolidated in the Constitution (the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012, and its conclusions of 26 October 2012 and 10 November 2012).

In the Constitution, the universally recognised democratic principles of election to representative political institutions are entrenched, as, for instance: elections must be conducted on the basis of universal, equal, and direct suffrage, the ballot must be secret; under the Constitution, only such elections are allowed where there is free and fair competition for the mandate, where the voters have the right and a real opportunity to choose from several candidates, where at the time of voting they can express their will freely and without being subjected to control; the requirements of transparency and publicity must be applied to the formation of a representative political institution (the Constitutional Court’s ruling of 9 November 2010 and 10 November 2012).

The Constitutional Court has noted that the European Parliament is not the representation of the Nation, however, it should be regarded as a representative political institution of the European Union, whose election procedure in a concrete Member State of the European Union is established by the legislature of a corresponding Member State  (the Constitutional Court’s ruling of 9 November 2010).

Thus, the provision of Paragraph 2 of Article 34 of the Constitution that the right to stand for election shall be established by the Constitution of the Republic of Lithuania and by the election laws means, inter alia, that, in regulating, by means of laws, the implementation of the passive electoral right in electing representative political institutions, inter alia, the European Parliament, the legislature has the constitutional duty to heed the imperatives which arise out of the Constitution, i.e., it has to heed, inter alia, the principles of electoral law (the Constitutional Court’s ruling of 9 November 2010).

7.3. In construing Paragraph 2 of Article 34 of the Constitution, the Constitutional Court has also held that the right of a person, which is guaranteed by the Constitution, to stand for election under the conditions provided for by law is an important constitutional right of a person (the Constitutional Court’s ruling of 11 May 2011); the legislature has the powers to establish in the election laws the constitutionally grounded requirements (conditions) for a person who is eligible to stand in elections (the Constitutional Court’s rulings of 25 May 2004, 17 November 2011, and 29 March 2012).

7.4. The Constitution guarantees and safeguards the interest of the public to be informed (inter alia, the Constitutional Court’s rulings of 23 October 2002, 8 July 2005, 21 December 2006, and 17 November 2011). In construing Paragraph 2 of Article 34 of the Constitution in conjunction with the right of the public to receive information consolidated in Article 25 thereof, the Constitutional Court has emphasised that the interest of the public to be informed assumes especial importance in the process of elections to political representative institutions (the Constitutional Court’s rulings of 17 November 2011 and 29 March 2012).

The Constitutional Court has also noted that the legislature must ensure fair competition among subjects implementing the passive electoral right, as well as the publicity of the information important to voters regarding these subjects (the Constitutional Court’s rulings of 17 November 2011 and 29 March 2012).

7.5. In the context of the constitutional justice case at issue it should be noted that a duty arises out of Paragraph 2 of Article 34 of the Constitution for the legislature to establish the legal regulation that would ensure the adherence to the principles of democratic elections, inter alia, the transparency of the electoral process, the equality of the candidates nominated by collective entities and fair competition, as well as the publicity of information that is important to voters about such entities. The ensuring of democratic electoral principles implies the establishment of the legal regulation creating preconditions for informing voters in a proper manner about the collective entities that nominate candidates in an election, inter alia, the names of such entities; this information must be public, easily accessible, and it must not mislead voters; the collective entities that nominate candidates in an election must have the opportunity to participate in the electoral process and present themselves under the name of their choice to voters. It should be noted that the name of these entities helps the voters not only to recognise and distinguish them from other collective entities that nominate candidates, but also to decide about their values, strivings, etc. In case their opportunity to participate in the electoral process and to present themselves under the name of their choice were restricted, the implementation of the passive electoral right of the persons entered on the lists of candidates nominated by such entities would be burdened, and the principles of the transparency of the process of a democratic electoral process, of the equality of collective entities that nominate candidates in an election, and of fair competition would be violated.

7.6. Alongside, it needs to be noted that, both the collective entities that have the right to nominate candidates in elections to political representative institutions, when they choose their name under which they wish to present themselves to the voters, and the legislature, when it regulates respective relations, are bound by the Constitution, inter alia, the constitutional principle as a responsible political process, the constitutional imperatives to respect and safeguard the constitutional order, public order, the protection of public morals, not to incite national, racial, religious, and social hatred, violence, or discrimination. The principles of democratic elections consolidated in the Constitution also give rise to the imperative for the legislature to establish the legal regulation ensuring that, during the electoral process, voters are properly informed about the collective entities that nominate candidates in an election, inter alia, the names of such entities, which must not be misleading for voters.

  1. In this context, it should be noted that, also the European Court of Human Rights, while construing the right to free elections to legislative institutions, consolidated in Article 3 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, has held that the provisions of this article that establish the principles of democratic, free and secret elections are also applicable to elections to the European Parliament (Grand Chamber judgment of 18 February 1999 in the case of Matthews v. the United Kingdom, application No. 24833/94); the European Parliament should be treated as “the legislature”, therefore, the principles of democratic and free elections consolidated in Article 3 of the First Protocol are also applicable to elections to the European Parliament with regard to the provisions of acts of EU law governing this sphere (judgment of 23 November 2010 in the case of Greens and M. T. v. the United Kingdom, applications Nos. 60041/08 and 60054/08; judgment of 12 August 2014 in the case of Firth and Others v. the United Kingdom, application Nos. 47784/09, 47806/09, etc.).
  2. In deciding whether the legal regulation established in Paragraph 6 of Article 38 of the Law is not in conflict with Paragraph 2 of Article 34 of the Constitution, it should be noted that, as mentioned before, according to such legal regulation, regardless of the fact that an election committee has chosen its name and specified it in its rules of procedure, this election committee must participate in the electoral process not under such a name, but under the letter that has been assigned to it by the Central Electoral Commission in the course of its registration.

As mentioned before, a duty arises out of Paragraph 2 of Article 34 of the Constitution for the legislature to establish the legal regulation that would ensure the adherence to the principles of democratic elections, inter alia, the transparency of the electoral process, the equality of the candidates nominated by collective entities and fair competition, as well as the publicity of information that is important to voters about such candidates. The ensuring of democratic principles of elections implies that the collective entities that nominate candidates in an election to the European Parliament must have the opportunity to participate in the electoral process and present themselves under the name of their choice to voters. As mentioned before, the name of the collective entities that nominate candidates in an election helps the voters not only to recognise and distinguish them from other collective entities that nominate candidates, but also to decide about their values, strivings, etc. In case such an opportunity were restricted, the implementation of the passive electoral right of the persons entered on the lists of candidates nominated by collective entities would unreasonably be burdened and the aforesaid principles of democratic elections would be violated.

Thus, it should be held that, in the absence of any important and constitutionally grounded objective, after the impugned legal regulation had restricted the opportunity of public election committees to participate in elections to the European Parliament and present themselves under the name of their choice to voters and after it had obligated them to participate in this process by presenting themselves under the letter assigned to them by the Central Electoral Commission, the implementation of the passive electoral right of the persons entered on the lists of candidates for members of the European Parliament nominated by election committees was burdened, the principles of the transparency of the electoral process, of the equality of collective entities that nominate candidates in an election, and of fair competition were not ensured.

Consequently, the impugned provisions of Paragraph 6 of Article 38 of the Law, according to which, while registering an election committee that has chosen its name and indicated it in its rules of procedure, the Central Electoral Commission assigns this committee a letter, which is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament, violate the passive electoral right consolidated in Paragraph 2 of Article 34 of the Constitution.

  1. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “When registering the election committee, following the order of registration time of the election committees at the Central Electoral Commission, the Central Electoral Commission shall assign it a letter without a diacritical mark. This letter is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament” of Paragraph 6 of Article 38 of the Law, to the extent that it provides that a letter to be considered to be the name of an election committee is also assigned to an election committee that has already chosen its name and indicated it in its rules of procedure, is in conflict with Paragraph 2 of Article 34 of the Constitution.
  2. Having held this, in the constitutional justice case at issue, the Constitutional Court will not further investigate whether Paragraph 6 of Article 38 of the Law, to the extent specified by the petitioner, is not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  3. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) or any other act (or part thereof) of the Seimas and an act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the legal act in question (part thereof) is in conflict with the Constitution. This constitutional provision means that, until the Constitutional Court has not adopted such a decision, it is presumed that the legal act in question (part thereof) is in compliance with the Constitution and that the legal effects that have appeared on the basis of such a legal act (part thereof) are legitimate; thus, the general rule has been established in Paragraph 1 of Article 107 of the Constitution that the power of Constitutional Court decisions is prospective (inter alia, the Constitutional Court’s rulings of 30 December 2003, 25 October 2011, and its decision of 19 December 2012).

In the context of the constitutional justice case at issue, it should be noted that the legal effects that emerged in the process of the 25 May 2014 election to the European Parliament on the grounds of the provisions of Paragraph 6 of Article 38 of the Law, which have been ruled to be in conflict with the Constitution in this ruling of the Constitutional, are lawful. In view of the fact that the legal regulation established in Paragraph 6 of Article 38 of the Law by which the implementation of the passive electoral right of the candidates nominated by election committees was constitutionally unreasonably burdened, such a right of theirs was generally not denied and the constitutional principles of democratic and free elections were not trampled upon, therefore, the lawfulness of the 25 May 2014 election to the European Parliament cannot be questioned on the ground that this legal regulation has been ruled to be in conflict with the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56, and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

  1. To recognise that the provisions “When registering the election committee, following the order of registration time of the election committees at the Central Electoral Commission, the Central Electoral Commission shall assign it a letter without a diacritical mark. This letter is considered to be the name of the election committee and is included in the ballot paper of the election to the European Parliament” of Paragraph 6 of Article 38 of the Republic of Lithuania’s Law on Elections to the European Parliament (wording of 12 November 2013; Official Gazette Valstybės žinios, 2013, No. 121-6116), to the extent that it provides that a letter to be considered to be the name of an election committee is also assigned to an election committee that has already chosen its name and indicated it in its rules of procedure, is in conflict with Paragraph 2 of Article 34 of the Constitution.
  2. To dismiss the part of the case regarding the compliance of Paragraph 2 of Article 38 of the Republic of Lithuania’s Law on Elections to the European Parliament (wording of 12 November 2013; Official Gazette Valstybės žinios, 2013, No. 121-6116) with Paragraph 1 of Article 29 and Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law.

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

                                                                                                        Vytas Milius

                                                                                                        Algirdas Taminskas

                                                                                                        Dainius Žalimas