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Content updated: 23-06-2021 15:35

The legal regulation according to which a member of the European Parliament or of a municipal council elected to the Seimas automatically loses his/her mandate is in conflict with the Constitution

28-05-2021

In the ruling adopted today, the Constitutional Court, subsequent to the petition of the petitioner – a group of members of the Seimas – has declared unconstitutional the legal regulation laid down in the Law on Elections to the Seimas, the Law on Elections to the European Parliament, and the Law on Elections to Municipal Councils, under which a member of a municipal council (inter alia, the mayor) or a member of the European Parliament elected to the Seimas, by decision of the Central Electoral Commission, lost his/her mandate of a member of the municipal council or of the European Parliament, regardless of the will of that person and without giving him/her the opportunity to choose which position he/she would like to hold in the future.

In this ruling, the Constitutional Court noted that, according to Paragraph 2 of Article 34 of the Constitution, which enshrines the passive electoral right, as well as according to the constitutional principle of a state under the rule of law, a fair electoral process, including the free expression of the will of citizens and fair competition among those exercising the passive electoral right, must be ensured. As such, encouraging voters to participate or abstain from participating in elections and/or to vote in favour of an entity exercising the passive electoral right on the basis of the opinion of persons well known in society (or the nomination of such persons as candidates in elections) cannot be regarded as an infringement of the free expression of the will of citizens, including their free and uncontrolled opinion on candidates taking part in elections, and, therefore, cannot be regarded as an infringement of the principle of fairness in the electoral process, which could create the preconditions for doubting the legitimacy and lawfulness of the election results.

It follows from Paragraph 2 of Article 34 of the Constitution that the legislature has a duty to establish such a legal regulation that would ensure, among others, the transparency of the electoral process, fair competition among persons exercising the passive electoral right, and the publicity of information about them that is relevant to the voters. Under the Constitution, information relevant to the voters about entities exercising the passive electoral right is also such information that a person seeking to be elected a member of the Seimas holds another office incompatible with the duties of a member of the Seimas, including in another political representative institution (in the European Parliament or a municipal council) to which he/she has been elected. Such information is public and easily accessible, so voters have the opportunity to take it into account, to form in a free and uncontrolled way an opinion about the candidate in question (e.g. in elections to the Seimas), including the seriousness of his/her intentions to hold the relevant elective office (e.g. the office of a member of the Seimas) and decide whether to vote in favour of the candidate or the list of candidates on which he/she is entered.

Taking this into account, the Constitutional Court held that, under the Constitution, among others, Paragraph 2 of Article 34 thereof, and the constitutional principle of a state under the rule of law, it is not allowed to establish such a legal regulation of elections that would be based solely on the presumption that the electoral process is unfair if it involves persons well known in society, including persons holding office in another political representative institution (such as the European Parliament or a municipal council), or that such persons are in themselves dishonest in participating in elections to certain political representative institutions (e.g. the Seimas) or that their intentions to hold the relevant elective office, including to obtain the mandate of a member of the Seimas, are not serious.

The Constitutional Court also held that, according to Paragraphs 2 and 3 of Article 59 of the Constitution, a person elected as a member of the Seimas may refuse to take an oath and simultaneously suffer unavoidable legal consequences – lose the mandate of a member of the Seimas, i.e. he/she has the right to decide whether to acquire the powers of a representative of the People by taking an oath, or not to take an oath (take a conditional oath) and simultaneously lose the mandate of a member of the Seimas. Thus, the constitutional principle of the incompatibility of the duties of a member of the Seimas with another office and the obligation arising from the duties of a member of the Seimas for a person elected as a member of the Seimas to resign from another post incompatible with the duties of a member of the Seimas does not mean that persons holding an office under the Constitution incompatible with the duties of a member of the Seimas (among others, of a member of the European Parliament or a member of the municipal council) do not have the right to seek to stand for election as members of the Seimas (i.e. that they do not have the passive electoral right in electing members of the Seimas), but rather that, if such a person holding an office incompatible with the duties of a member of the Seimas is elected to the Seimas, he/she must decide, before taking an oath of a member of the Seimas, whether to hold the office held by him/her (including the office of a member of the European Parliament or a member of the municipal council) or to acquire and begin to exercise the powers of a member of the Seimas.

As held by the Constitutional Court, the impugned legal regulation, under which a member of a municipal council (inter alia, the mayor) or a member of the European Parliament elected as a member of the Seimas are not granted the right to decide whether to hold the office, held by him/her, of a member of the European Parliament, or of a member of the municipal council, or of the mayor, or whether to acquire and begin to exercise the powers of a member of the Seimas aggravates the implementation of the right of persons holding the mandate of a member of a municipal council (including that of the mayor) or of a member of the European Parliament to be elected members of the Seimas (i.e. aggravates the implementation of the passive electoral right). Moreover, according to the Constitutional Court, such a legal regulation does not take into account the fact that information on the fact that persons participating in elections to the Seimas hold the office of a member of a municipal council (including that of the mayor) or of a member of the European Parliament is public and easily accessible, and that voters have the opportunity, taking into account such information, to form in a free and uncontrolled way an opinion on the respective candidate participating in the elections, as well as on the seriousness of his/her intentions to hold the office of a member of the Seimas, and decide whether to vote for such a candidate or the list of candidates on which he/she is entered.

The part of the case on the compliance of the law amending the Law on Elections to the Seimas with the Constitution in terms of the procedure of its adoption was dismissed, stating that after the impugned legal regulation enshrined in the Law on Elections to the Seimas had been declared unconstitutional, it could no longer be applied; therefore, there was no point in investigating whether the manner of its adoption was in conflict with the Constitution. Consequently, the matter for investigation disappeared in the case, which constituted grounds for dismissing that part of the case.