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On the amendment of the resolution of the Seimas establishing a special investigation commission of the Seimas and on the procedure for the formation of such a commission

 

Case no 13/2018

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

RULING


ON THE COMPLIANCE OF PARAGRAPH 7 OF ARTICLE 71 OF THE STATUTE OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF THE RESOLUTION (No XIII-1227) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 31 MAY 2018 AMENDING THE RESOLUTION (No XIII-1036) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 20 MARCH 2018 ON FORMING A SPECIAL INVESTIGATION COMMISSION OF THE REPUBLIC OF LITHUANIA FOR AN INVESTIGATION INTO THE REASONABLENESS OF THE MOTION SUBMITTED BY A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA TO INSTITUTE IMPEACHMENT PROCEEDINGS AGAINST ARTŪRAS SKARDŽIUS, A MEMBER OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, AND FOR DRAWING UP A CONCLUSION REGARDING THE GROUNDS FOR INSTITUTING THE IMPEACHMENT PROCEEDINGS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE STATUTE OF THE SEIMAS

 

18 December 2019, no KT76-N15/2019
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, 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, at the hearing of the Constitutional Court on 27 November 2019, considered, under written procedure, constitutional justice case no 13/2018 subsequent to the petition (no 1B-16/2018) of a group of members of the Republic of Lithuania, the petitioner, requesting an investigation into whether the resolution (No XIII-1227) of the Seimas of the Republic of Lithuania of 31 May 2018 amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March 2018 on forming a special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings is in conflict with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998).

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The petition of a group of members of the Seimas, the petitioner, requesting an investigation into the compliance of the resolution (No XIII-1227) of the Seimas of 31 May 2018 amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March 2018 on forming a special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings (hereinafter also referred to as the resolution of the Seimas of 31 May 2018) with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) (hereinafter also referred to as the Statute of the Seimas) is based on the following arguments.

1.1. By the resolution (No XIII-1036) of the Seimas of 20 March 2018 on forming a special investigation commission of the Seimas of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings (hereinafter also referred to as the resolution of the Seimas of 20 March 2018), the special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings (hereinafter referred to as the Commission) was formed. By this resolution of the Seimas, the Commission was formed from 12 members under the general procedure established by the Statute of the Seimas according to the principle of proportional representation of the political groups.

1.2. By the impugned resolution of the Seimas of 31 May 2018, one member was removed from the Commission, but the number of members of the Commission was not changed and, consequently, the proportion of the representation of the political groups was not altered. This means that, following the adoption of the impugned resolution of the Seimas of 31 May 2018, the composition of the Commission became unlawful as a result of the infringement of the procedure laid down in the Statute of the Seimas for the formation of commissions of the Seimas. This procedure should have applied not only when the Commission was set up for the first time, but also when its composition was changed. Having adopted the resolution of the Seimas of 31 May 2018 without following the procedure, laid down in the Statute of the Seimas, for the formation of commissions of the Seimas, one member of the Commission was removed from it without a legal basis.

II

The arguments of the representative of the party concerned

2. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations by Agnė Širinskienė, Chair of the Committee of the Seimas on Legal Affairs, acting as the representative of the Seimas, the party concerned, were received, in which she maintains that the impugned resolution of the Seimas of 31 May 2018 is not in conflict with the Statute of the Seimas. The position of the representative of the party concerned is based on the following arguments.

2.1. Referring to the provisions of the official constitutional doctrine set out in the Constitutional Court’s ruling of 13 May 2004, the representative of the party concerned states that the Seimas, having the discretion to set up its structural units, to determine their competences, to formulate certain tasks for them, also has the discretion to determine their names, competences, composition, relations between them, the duration of their activities, and to formulate certain tasks for them; when establishing this, the Seimas is bound by the norms and principles of the Constitution.

2.2. Under Article 76 of the Constitution, the structure and procedure of activities of the Seimas are established by the Statute of the Seimas, which has the force of a law. A blanket norm is set out in this article of the Constitution, which permits the Seimas to establish its own structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competences of other structural units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas.

2.3. The adoption of the resolution of the Seimas of 20 March 2018 setting up the Commission complied with the requirements of Article 232 of the Statute of the Seimas governing the procedure for the formation of a special investigation commission: (1) the commission is set up from members of the Seimas; (2) as a rule, the commission may not consist of more than 12 members; (3) members of the commission are proposed according to the procedure established in Article 71 of this Statute by the majority of the Seimas and the minority of the Seimas; (4) when setting up the commission, the Seimas simultaneously appoints the chair and deputy chair of the commission, and sets the time limits of the execution of the investigation.

2.4. According to Paragraph 5 of Article 71 of the Statute of the Seimas, the Seimas must vote for the full list of members of an ad hoc investigation commission. The Seimas, when forming an ad hoc investigation commission of the Seimas, paid regard to the constitutional imperative of the protection of the minority of the Seimas, and the minimum requirements, arising from the Constitution, for the protection of the opposition of the Seimas, where the said imperative and requirements imply, inter alia, that an ad hoc investigation commission of the Seimas may not be formed only from the representatives of the political majority of the Seimas, without including representatives from the minority (opposition) if they so request; therefore, it must be concluded that the resolution of the Seimas of 20 March 2018 complied with the norms on proportional representation.

2.5. Quotas meeting the norms for proportional representation of the political groups (including those of the opposition) are normally discussed at the Conference of Chairs of the Seimas at the beginning of the term of office of the Seimas or later if changes occur in the size of the political groups. Subsequently, the said quotas serve as guidelines when the political groups nominate candidates for members of the committees and commissions, including special investigation commissions. As regards this matter, the representatives of the opposition who participated in the meeting of the Conference of Chairs of the Seimas on 20 March 2018 in the context of the approval of the number of members of the Commission (12 persons) did not ask any additional questions and did not raise the issue of proportional representation, realising that they would propose a proportional number of their political group representatives in the same way as they do in other cases, i.e. in cases of setting up committees or standing commissions.

2.6. After the Commission had started its work, a draft amendment to the resolution of the Seimas of 20 March 2018 was proposed to the Seimas based on the fact that members of the Seimas in the performance of their duties must avoid conflicts of interest; the Seimas adopted it on 31 May 2018. This draft resolution of the Seimas, according to the representative of the party concerned, was prepared after the press had reported that the son of the member of the Commission Andrius Kubilius had been a member of the supervisory board of a company managing another company competing with a company operating in Belarus; in the course of its investigation, the Commission was to be interested in the latter company. According to the representative of the party concerned, this indicated a potential conflict of interests of Seimas member Andrius Kubilius in the Commission.

2.7. Paragraph 3 of Article 71 of the Statute of the Seimas and the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article apply for the formation of the entire commission. As mentioned above, after the setting up of the Commission, after doubts had arisen about the participation of one member of the Seimas in the further work of the Commission, a draft amendment to the resolution of the Seimas of 20 March 2018 was submitted, the substance of which was to propose the replacement of one member of the Commission rather than reforming the Commission, forming it anew, or re-allocating the quotas to the political groups; therefore, the Seimas followed the provision of Paragraph 7 of Article 71 of the Statute of the Seimas, under which, in certain instances, the Seimas may establish another procedure for forming commissions, however, these may not consist of representatives of one political group of the Seimas or one committee of the Seimas.

2.8. When the draft amendment to the resolution of the Seimas of 20 March 2018 was being submitted, the political group of the Homeland Union – Lithuanian Christian Democrats received the proposal that it delegate another member to the Commission, but, according to the transcript of the verbatim report of the morning sitting (No 180) of 31 May 2018 of the IV (spring) session of the Seimas, the chair of this political group issued a political declaration, stating that this political group would withdraw and would no longer participate in the work of all the present and future impeachment, investigation, and other commissions organised by the majority of the Seimas.

2.9. Thus, the impugned resolution of the Seimas of 31 May 2018 cannot be considered unlawful, because it complied with the norms of proportional representation and allowed all the political groups to participate in the work of the Commission, but the political group of the Homeland Union – Lithuanian Christian Democrats did not make use of the possibility, provided for in the provision of Paragraph 3 of Article 232 of the Statute of the Seimas, to propose another candidate, and, as a result, one seat remained vacant in the Commission.

The Constitutional Court

holds that:

I

The impugned legal regulation and the factual circumstances surrounding its establishment

3. On 20 March 2018, the Seimas adopted the resolution (No XIII-1036) on forming a special investigation commission of the Seimas of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings.

By this resolution of the Seimas of 20 March 2018, the Commission was set up, consisting of 12 members of the Seimas (Article 1), and its specific composition was approved; Seimas member Andrius Kubilius (together with the other respective members of the Seimas) was appointed a member of the said Commission (Article 2).

4. On 17 May 2018, the draft (No XIIIP-2154) of the impugned resolution of the Seimas was registered in the Seimas, which proposed a change in the composition of the Commission by removing from it one member, Seimas member Andrius Kubilius, belonging to the opposition political group of the Homeland Union – Lithuanian Christian Democrats. No member of the Commission replacing him was proposed by this draft resolution of the Seimas.

It should be noted that this draft (No XIIIP-2154) of the impugned resolution of the Seimas does not specify the circumstances and reasons that led to the submission of this draft resolution.

As can be seen from the written explanations of the representative of the Seimas, the party concerned, as well as from the transcript of the verbatim report of the evening sitting (No 177) of 24 May 2018 of the IV (spring) session of the Seimas, the draft (No XIIIP-2154) of the impugned resolution of the Seimas was prepared following the publication in the press of the information on the basis of which it was presumed that there was a potential conflict between public and private interests of the member of the Commission Andrius Kubilius.

5. On 31 May 2018, the Seimas adopted the resolution (No XIII-1227) of the Seimas amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March 2018 on forming a special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings, which is impugned in this constitutional justice case.

Attention should be drawn to the fact that the title of the resolution of the Seimas of 31 May 2018 does not accurately reflect the title of the amended resolution of the Seimas of 20 March 2018 – after omitting the word “Seimas”, the special investigation commission was named as a “special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings”.

5.1. The impugned resolution of the Seimas of 31 May 2018 prescribes:

The Seimas of the Republic of Lithuania r e s o l v e s:

Article 1.

To amend Article 2 and set it out as follows:

Article 2.

To approve the Commission of the following composition:

(1) Rimas Andrikis;

(2) Arvydas Anušauskas;

(3) Eugenijus Gentvilas;

(4) Jonas Jarutis;

(5) Aušrinė Norkienė;

(6) Česlav Olševski;

(7) Mindaugas Puidokas;

(8) Viktoras Rinkevičius;

(9) Rimantė Šalaševičiūtė;

(10) Stasys Šedbaras;

(11) Agnė Širinskienė;

(12) no member appointed.’”

5.2. Thus, by the impugned resolution of the Seimas of 31 May 2018, the Commission was not formed anew, but only a change in its composition was made: following the amendment of Article 2 of the resolution of the Seimas of 20 March 2018, one of the members of the Commission, Seimas member Andrius Kubilius, belonging to the opposition political group of the Homeland Union – Lithuanian Christian Democrats, was removed from the Commission. No other member of the Seimas was appointed instead of the removed member of the Seimas. The remaining composition of the Commission remained unchanged, leaving 11 members instead of 12.

It should be noted that Article 1 of the resolution of the Seimas of 20 March 2018, according to which the Commission comprised 12 members, was not amended by the impugned resolution of the Seimas of 31 May 2018.

6. It should be mentioned that, Article 4 (wording of 29 May 2018) of the resolution of the Seimas of 20 March 2018 tasked the Commission with carrying out the investigation by 25 June 2018 and with submitting to the Speaker of the Seimas a conclusion on the grounds for beginning the impeachment proceedings, as well as a relevant draft resolution of the Seimas and other relevant documents. The Commission prepared the conclusion and submitted the draft resolution of the Seimas, as well as the other documents, on 20 June 2018. In this conclusion, the Commission stated that the charges brought against Seimas member Artūras Skardžius in the motion submitted by a group of members of the Seimas were unfounded and that there were no grounds to begin impeachment proceedings against Seimas member Artūras Skardžius (Item 8).

On 30 June 2018, the Seimas adopted the resolution (No XIII-1425) on upholding the conclusion of the special investigation commission of the Seimas of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings (hereinafter also referred to as the resolution of the Seimas of 30 June 2018), by Article 1 whereof it was decided to uphold the conclusion of the Commission. By Article 2 of the resolution of the Seimas of 30 June 2018, it was recognised that the Commission had completed its work.

It is thus apparent from the resolution of the Seimas of 30 June 2018 that the Seimas decided not to begin impeachment proceedings against Seimas member Artūras Skardžius.

7. It should be noted that the material of this constitutional justice case shows that, on 18 May 2018 (already after the draft (No XIIIP-2154) of the impugned resolution of the Seimas, proposing that the composition of the Commission be changed by removing from it one member, Seimas member Andrius Kubilius, had been registered in the Seimas on 17 May 2018), Seimas member Ramūnas Karbauskis applied to the Chief Official Ethics Commission (Vyriausioji tarnybinės etikos komisija (VTEK); hereinafter referred to as the VTEK) for an assessment of the conduct of Seimas member Andrius Kubilius.

At its meeting of 30 May 2018, the VTEK decided not to open an investigation into the compatibility of the conduct of Seimas member Andrius Kubilius with the provisions of the Republic of Lithuania’s Law on the Coordination of Public and Private Interests in State Service on the ground that the VTEK had no direct and obvious evidence to conclude that Andrius Kubilius had declared in violation of the procedure and time limits laid down in laws the circumstances giving rise to a conflict of interest. The VTEK decided to refer to the Commission for Ethics and Procedures of the Seimas the part of the report of Ramūnas Karbauskis relating to a possible situation of a conflict between public and private interests in the service of Seimas member Andrius Kubilius (acting as a member of the Commission), as the VTEK had no power to assess the compliance of the activities of a member of the Seimas with the provisions of the Statute of the Seimas governing the obligation of a member of the Seimas to avoid conflicts of interest and the procedure of the implementation of the obligation to withdraw.

At its meeting of 13 June 2018, the Commission for Ethics and Procedures of the Seimas, having regard to the fact that, by the resolution of the Seimas of 31 May 2018, Seimas member Andrius Kubilius had been removed from the Commission, decided not to open an investigation into the conduct of Seimas member Andrius Kubilius.

II

The relevant legal regulation, laid down in the Statute of the Seimas, governing the formation of commissions of the Seimas

8. In this constitutional justice case, the Constitutional Court is examining the compliance of the resolution of the Seimas of 31 May 2018, which changed the composition of the Commission, with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.

9. On 17 February 1994, the Seimas adopted the Statute of the Seimas, which entered into force on 26 February 1994. The Statute of the Seimas has been amended and/or supplemented on several occasions.

On 22 December 1998, the Seimas adopted the Statute of the Seimas amending the Statute of the Seimas (wording of 17 February 1994, as subsequently amended and supplemented) and set it out in its new wording. The Statute of the Seimas in its new wording entered into force on 1 February 1999.

10. Paragraph 3 of Article 25 of the Statute of the Seimas provides that, in order to resolve short-term issues or issues of narrower scope, and for carrying out specific assignments, the Seimas may, from among its members, form investigation, control, auditing, preparatory, drafting, and other ad hoc commissions.

10.1. Paragraph 1 of Article 71 of the Statute of the Seimas provides, among other things, that, having acknowledged the necessity, the Seimas may form ad hoc investigation, control, revision, preparatory, editorial, and other commissions to examine and prepare or fulfil other assignments of the Seimas.

10.2. According to Paragraph 2 of Article 231 (wording of 13 October 2011) of the Statute of the Seimas, if the motion to institute impeachment proceedings has been submitted by a group consisting of not less than one-fourth of all of the members of the Seimas, the Seimas sets up a special investigation commission to investigate the validity of the submitted proposals to institute impeachment proceedings and to prepare a conclusion concerning the grounds for instituting impeachment proceedings (hereinafter also referred to as a special investigation commission).

10.3. It is thus apparent from the provisions of Paragraph 3 of Article 25, Paragraph 1 of Article 71, and Paragraph 2 of Article 231 (wording of 13 October 2011) of the Statute of the Seimas that a special investigation commission is an ad hoc commission of the Seimas, which performs the specific functions – investigates the validity of the submitted proposals to institute impeachment proceedings and prepares a conclusion concerning the grounds for instituting impeachment proceedings.

11. The Statute of the Seimas also regulates the procedure for the formation of ad hoc commissions of the Seimas, inter alia, that of the formation of special investigation commissions of the Seimas.

11.1. In the context of this constitutional justice case, it should be noted that the setting up of a special investigation commission as an ad hoc commission of the Seimas performing specific functions (an investigation into the validity of the submitted proposals to institute impeachment proceedings and the preparation of a conclusion concerning the grounds for instituting impeachment proceedings) is subject both to the general requirements, laid down in Article 71, titled “Formation of Commissions”, of the Statute of the Seimas, for the procedure for the formation of commissions of the Seimas, and to the special requirements enshrined in Article 232, titled “Procedure for Setting up a Special Investigation Commission”, of the Statute of the Seimas.

11.1.1. Article 71 of the Statute of the Seimas, inter alia, prescribes:

[…]

3. The number of commission members shall be established first, when forming the commission. The norms of the proportional representation of the political groups of the Seimas and the time limit for the nomination of candidates for commission membership shall be established subsequently.

4. Should the submitted list of candidates for commission membership prove to be insufficient, the political groups may each verbally suggest an additional candidate during a meeting, after which each member of the Seimas may do likewise, until the required number of candidates is attained.

5. Each of the nominated candidates must agree verbally and, if not present at the meeting, submit a written agreement to work in the commission. The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated.

6. When candidates for commission membership are proposed during a sitting of the Seimas not according to pre-established norms and where at least two members of the Seimas express doubt regarding any of the candidates, such a candidate shall be voted on individually. If, during a sitting of the Seimas, the number of commission candidates proposed at a meeting exceeds the established number of commission members and all of the proposed candidates agree to work in the commission, an open-ballot vote shall be taken with the list of candidates included on the ballots.

7. In certain instances, the Seimas may establish another procedure for forming commissions; however, these may not consist of representatives of one political group or one committee.”

11.1.2. Article 232 of the Statute of the Seimas prescribes:

1. A special investigation commission shall be set up from members of the Seimas.

2. As a rule, the commission may not consist of more than 12 members.

3. Members of the commission shall be proposed according to the procedure established in Article 71 of this Statute by the majority of the Seimas and the minority of the Seimas.

4. When setting up the commission, the Seimas shall simultaneously appoint the chair and deputy chair of the commission, and shall set the time limits of the execution of the investigation.”

11.1.3. Interpreting in a systemic manner Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas, it should be noted in the context of this constitutional justice case that, under the legal regulation established therein, when setting up a special investigation commission, first the number of commission members is determined, then the norms of the proportional representation of the political groups in the Seimas (thus, the norms regarding both the majority of the Seimas and the minority of the Seimas) and the time limit for proposing candidates to members of the commission are established; the candidates are proposed by both the majority of the Seimas and the minority of the Seimas, and when the Seimas votes for the candidates proposed by the majority and the minority of the Seimas, the entire list of members of the commission so formed is voted on and, if the list is not approved, the procedure for appointing members of the commission is re-launched and repeated by using the same method.

11.1.4. Thus, it is clear from Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas that, under the legal regulation laid down therein, in setting up a special investigation commission, the said procedures must be followed in order, and one of these procedures is the procedure for proposing candidates for the members of the commission, in which both the majority of the Seimas and the minority of the Seimas must participate.

11.2. As regards the aspect relevant to this constitutional justice case, it needs to be mentioned that Paragraph 6 of Article 71 of the Statute of the Seimas provides that, when candidates for commission membership are proposed during a sitting of the Seimas not according to pre-established norms and where at least two members of the Seimas express doubt regarding any of the candidates, such a candidate is voted on individually; if, during a sitting of the Seimas, the number of commission candidates proposed at a meeting exceeds the established number of commission members and all of the proposed candidates agree to work in the commission, an open-ballot vote is taken with the list of candidates included on the ballots.

It is thus apparent from Paragraph 6 of Article 71 of the Statute of the Seimas that, under the legal regulation laid down therein, when candidates for commission membership are proposed during a sitting of the Seimas not according to pre-established norms and where at least two members of the Seimas express doubt regarding any of the candidates, commissions of the Seimas are formed in a manner different from that laid down in Paragraphs 3 and 5 of Article 71 of the Statute of the Seimas, inter alia, by voting not on the full list of commission members, but on individual candidates.

11.3. As regards the aspect relevant to this constitutional justice case, it should also be noted that, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may, “in certain instances”, establish another procedure for forming commissions, however, these may not consist of representatives of one political group or one committee.

Thus, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may establish a procedure for forming commissions that is different from that established in Paragraphs 3–6 of Article 71 of the Statute of the Seimas. It should be noted that neither Paragraph 7 of Article 71 of the Statute of the Seimas nor other provisions of the Statute of the Seimas specify in detail in which cases such a different procedure for the formation of commissions may be established and do not provide in which legal form (by means of which legal act), under which procedures, and which specific rules for the formation of commissions may be established by the Seimas.

12. In the context of the constitutional justice case, it should also be noted that neither Articles 71 and 232 of the Statute of the Seimas nor other provisions of the Statute of the Seimas contain a specific legal regulation that would provide for the possibility of changing the composition of a special investigation commission.

13. The provisions of the Statute of the Seimas regulating the legal status of the political structural units of the Seimas – political groups, inter alia, the opposition political groups, as well as the minority of the Seimas – are also relevant in this constitutional justice case.

13.1. Article 26 of the Statute of the Seimas provides, inter alia, that members of the Seimas may form themselves into political groups according to the procedure established by this Statute for implementing their political goals; this Statute establishes the rights of the political groups of the members of the Seimas (Paragraph 1); the members of the Seimas who have not been registered in political groups are considered as members of a group of the non-attached members of the Seimas; the group of the non-attached members of the Seimas is granted all of the rights of a political group provided for in this Statute (Paragraph 3).

13.2. Article 40 of the Statute of the Seimas provides that the political groups of the Seimas whose total number of the members is more than half of the members of the Seimas and that have signed a joint action declaration or coalition government agreement are considered the majority of the Seimas (Paragraph 1); opposition and other political groups that do not belong to the majority of the Seimas and the group of the non-attached members of the Seimas are considered the minority of the Seimas (Paragraph 2).

13.3. Article 41 of the Statute of the Seimas provides that the political groups of the members of the Seimas or their coalitions that disagree with the government programme may declare themselves opposition political groups (Paragraph 1); the political groups or their coalitions that proclaim in the Seimas the political declarations wherein the provisions distinguishing them from the majority of the Seimas are laid down are considered opposition political groups (Paragraph 2).

In this context, it should be noted that Paragraph 4 of Article 41 of the Statute of the Seimas enshrines the requirement of the protection of the parliamentary opposition. According to this provision of the Statute of the Seimas, opposition political groups and their coalitions are guaranteed all the rights of political groups and coalitions, as provided for in the Statute of the Seimas; these rights must not be restricted under any pretext.

III

The provisions of the Constitution and the official constitutional doctrine

14. In this constitutional case, the Constitutional Court examines whether the resolution of the Seimas of 31 May 2018, by which the composition of the special investigation commission for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings, is in conflict with the Statute of the Seimas.

15. The Constitutional Court has noted that impeachment is a special parliamentary procedure in which the highest state officials referred to in Article 74 of the Constitution are removed from office; also, the mandate of a member of the Seimas may be revoked under the impeachment procedure (the Constitutional Court’s rulings of 15 April 2004 and 25 May 2004); the purpose of impeachment proceedings is to resolve the issue of constitutional liability of the persons referred to in Article 74 of the Constitution (inter alia, the Constitutional Court’s rulings of 11 May 1999 and 24 February 2017, and its conclusion of 22 December 2017); impeachment is carried out by the Seimas (the Constitutional Court’s rulings of 11 May 1999, 25 January 2001, and 15 April 2004).

It needs to be noted that, as stated in the Constitutional Court’s ruling of 24 February 2017, under the Constitution, only the Seimas, while exercising its constitutional powers to carry out impeachment, may take a decision to begin impeachment proceedings against a specific person; under the Constitution, impeachment proceedings begin only after the Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a concrete person.

In its conclusion of 19 December 2017, when interpreting the issues relating to the beginning of impeachment proceedings in the Seimas, the Constitutional Court held that, inter alia, actions preceding the beginning of impeachment, i.e. before the Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a concrete person (where such actions include, inter alia, the initiative of members of the Seimas to begin impeachment or the investigation of the reasonableness of the charges brought by them in a commission formed by the Seimas or in another structural unit of the Seimas), do not constitute a stage of impeachment proceedings; these actions preceding the beginning of impeachment is a parliamentary procedure that cannot be regarded as a legal process stricto sensu: in the course of such a parliamentary procedure, the Seimas does not decide on the application of constitutional liability of a person, but only whether there is a basis for beginning impeachment.

16. The Constitutional Court has held that, under Article 74 of the Constitution, the establishment of the procedure for impeachment proceedings is also within the competence of the Seimas: it must define it in the Statute of the Seimas (the Constitutional Court’s rulings of 11 May 1999 and 25 January 2001).

In view of the fact that, as mentioned above, the actions preceding the beginning of impeachment is a parliamentary procedure, it should be noted in the context of this constitutional justice case that the Constitution, inter alia, Article 74 thereof, requires that the Statute of the Seimas regulate, inter alia, the actions preceding the beginning of impeachment, i.e. before the Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a concrete person, among other things, that the Statute of the Seimas regulate the procedure for the formation of a commission of the Seimas investigating the validity of the charges brought against a specific person.

Article 76 of the Constitution, which provides that the structure and procedure of activities of the Seimas is established by the Statute of the Seimas, which has the force of a law, is therefore relevant in this constitutional justice case.

16.1. The Constitutional Court has stated that, according to Article 76 of the Constitution, the structure and procedure of work of one of the state authorities, the Seimas, is established by the Statute of the Seimas, having the force of a law; a blanket norm is set out in this article of the Constitution, which permits the Seimas to establish its own structure, the procedure of its activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation and adoption, as well as the competence of other structural units of the Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas (the Constitutional Court’s rulings of 30 March 2000 and 2 May 2012). Thus, the Constitution consolidates the discretion of the Seimas in this area; at the same time, it needs to be noted that the Seimas, when establishing its structure and procedure of activities, must not violate the principles and norms of the Constitution (the Constitutional Court’s rulings of 25 January 2001 and 2 May 2012); the established structure and procedure of activities of the Seimas must be such as to enable the Seimas, the representation of the People, to perform its constitutional functions (the Constitutional Court’s ruling of 13 May 2004).

16.2. It is impossible to interpret the provision “The structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas” of Article 76 of Constitution only linguistically, i.e. as meaning that the powers of the structural units of the Seimas may be established only in the Statute of the Seimas (the Constitutional Court’s rulings of 13 May 2006, 4 April 2006, and 30 December 2015). Certain questions linked with the formation of the structural units of the Seimas, the establishment of their competences, the formation of their composition, or the formulation of tasks to them may be decided by means of substatutory legal acts of the Seimas; such substatutory legal acts of the Seimas may not be in conflict with laws, as well as with the Statute of the Seimas (the Constitutional Court’s rulings of 13 May 2006 and 4 April 2006).

17. Taking into account that the Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution), it needs to be noted in the context of this constitutional justice case that Article 76 of the Constitution, according to which the Statute of the Seimas, which has the force of a law, establishes the structure and procedure of activities of the Seimas, cannot be interpreted in isolation from the other norms and principles of the Constitution, inter alia, from the constitutional principle of a state under the rule of law and the concept of democracy, which is enshrined in the Constitution.

17.1. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law is an especially broad constitutional principle and comprises a wide range of interrelated imperatives; the content of the said principle should be revealed by taking into account the content of various other constitutional principles such as the supremacy of the Constitution, the sovereignty of the People, democracy, responsible governance, the limitation of the scope of powers, and the service of state institutions to the people (the Constitutional Court’s rulings of 13 December 2004, 17 November 2011, and 15 February 2019). Thus, the constitutional principle of a state under the rule of law is related, inter alia, with other constitutional principles such as the sovereignty of the People and democracy (the Constitutional Court’s ruling of 15 February 2019).

17.1.1. The provisions of Article 1 of the Constitution, as well as the principle of a state under the rule of law, which is established in the Constitution, determine the main principles of the organisation and activities of the state power of the State of Lithuania (the Constitutional Court’s rulings of 18 October 2000, 25 January 2001, and 29 March 2012); the provision of Article 1 of the Constitution that the State of Lithuania is democratic implies, inter alia, that the supremacy of the Constitution, the democratic decision-making process, and political pluralism must be ensured in the state (the Constitutional Court’s ruling of 19 September 2002); the majority principle is among the democratic principles of decision making (the Constitutional Court’s rulings of 22 July 1994, 4 April 2006, and 2 March 2018); the multi-party system creates the preconditions for ensuring political pluralism (the Constitutional Court’s ruling of 29 March 2012).

17.1.2. The Constitutional Court has also noted that the Constitution also enshrines parliamentary democracy; the model of parliamentary democracy consolidated in the Constitution is rational and moderate (the Constitutional Court’s decisions of 21 November 2006 and 16 January 2014, and its ruling of 30 December 2015).

The Constitutional Court has also stated on several occasions that, in the exercise of its constitutional powers, the Seimas fulfils the classical functions of the parliament of a democratic state under the rule of law (inter alia, the Constitutional Court’s rulings of 13 May 2004, 30 December 2015, and 16 May 2019). The functions of the Seimas as the representation of the People of a democratic state under the rule of law are constitutional values; under the Constitution, the legislature and other law-making entities may not establish any such legal regulation that would deny the constitutional functions of the Seimas or would restrict the possibilities of performing them, since thereby the Seimas, the representation of the People, would be hindered from effective functioning in the interests of the People and the State of Lithuania (inter alia, the Constitutional Court’s rulings of 13 May 2004, 13 May 2010, and 16 May 2019).

17.1.3. As emphasised by the Constitutional Court, under the Constitution, Lithuania is a pluralistic democracy (the Constitutional Court’s ruling of 21 December 2006, its conclusion of 22 December 2017, and its ruling of 16 May 2019); the necessary element of pluralistic democracy is the recognition of the parliamentary opposition (the Constitutional Court’s rulings of 25 January 2001 and 4 April 2006, and its conclusion of 22 December 2017).

The Constitutional Court has noted that the Constitution presupposes the defence of the parliamentary minority and the minimum requirements for the protection of the opposition of the Seimas (the Constitutional Court’s rulings of 26 November 1993, 25 January 2001, and 4 April 2006); the Statute of the Seimas must lay down guarantees for the functioning of the opposition (the Constitutional Court’s ruling of 25 January 2001).

17.1.4. In the context of this constitutional justice case, it should be noted that, under the Constitution, Lithuania is a pluralistic parliamentary democracy, whose conditio sine qua non is the parliamentary minority, inter alia, the parliamentary opposition. It should be emphasised that the mission of the parliamentary minority, inter alia, that of the parliamentary opposition, is to reflect the diversity of political views in parliament, thus ensuring political pluralism in the parliament of a democratic state under the rule of law and creating the preconditions for such a parliament to fulfil its functions; the mission of the parliamentary opposition is, inter alia, to propose an alternative political programme to the parliamentary majority and the political decisions based on it, to oversee the political activities of the parliamentary majority, inter alia, to criticise it.

At the same time, it should be noted that each member of the Seimas represents the whole of the People; when fulfilling his/her constitutional obligation to represent the People, a member of the Seimas participates in performing all constitutional functions of the Seimas and exercises all powers of a member of the Seimas (the Constitutional Court’s ruling of 1 July 2004 and its conclusion of 19 December 2017). It should also be noted that the free mandate of a member of the Seimas must be used in such a way that the Seimas could act effectively in the interests of the People and the State of Lithuania, and that it could properly discharge its constitutional obligation (the Constitutional Court’s conclusions of 27 October 2010, 19 December 2017, and 22 December 2017); in discharging their functions and implementing state authority, members of the Seimas must act in the interests of the People and the State of Lithuania, not in their personal or group interests, and not make use of their status in order to gain personal advantage either for themselves, persons close to them, or other persons (the Constitutional Court’s conclusions of 27 October 2010, 3 June 2014, and 19 December 2017).

It should also be noted that participation in the work of the Seimas is a constitutional duty and at the same time a right of a member of the Seimas (the Constitutional Court’s decision of 10 February 2005). In this context, it should also be noted that members of the Seimas, inter alia, those belonging to the parliamentary minority (inter alia, those of the parliamentary opposition), must exercise their rights and all the powers of a member of the Seimas responsibly, contributing to the effective implementation by the Seimas of the functions of the parliament of a democratic state under the rule of law.

17.1.5. In the context of this constitutional justice case, it should be noted that the Constitution, inter alia, the principles of the organisation and operation of the State of Lithuania and the concept of a pluralistic parliamentary democracy, which are implied by the constitutional principle of a state under the rule of law, require, in accordance with Article 76 of the Constitution, the establishment of such a structure and procedure of activities of the Seimas that would ensure the effective protection of the rights of the parliamentary minority, inter alia, those of the parliamentary opposition, and guarantees for its activities. This means, inter alia, that the principle of proportional representation must be ensured in the formation of the structural units of the Seimas (inter alia, committees and commissions of the Seimas), and that the composition of such structural units of the Seimas, inter alia, changes in the said composition, must not depend solely on the discretion of the parliamentary majority.

It should be noted that, as stated by the Constitutional Court, the Seimas, when it sets up ad hoc investigation commissions, must also respect the constitutional imperative for the protection of the rights of the minority of the Seimas and the minimum requirements, stemming from the Constitution, for the protection of the opposition of the Seimas; these requirements presuppose, inter alia, that ad hoc investigation commissions of the Seimas cannot be composed solely of representatives of the political majority of the Seimas, without involving representatives of the minority (opposition) of the Seimas if they so wish (the Constitutional Court’s ruling of 4 April 2006). In the context of this constitutional justice case, it should be noted that, under the Constitution, inter alia, Article 76 thereof, and the constitutional principle of a state under the rule of law, the composition of an ad hoc investigation commission of the Seimas, inter alia, of a commission of the Seimas set up before the beginning of impeachment proceedings in order to investigate the reasonableness of charges brought against a specific person, cannot be changed solely at the discretion of the parliamentary majority in the absence of clear and constitutionally justified reasons. Such reasons could include, inter alia, the situation where a member of an ad hoc investigation commission of the Seimas, inter alia, of a commission of the Seimas set up before the beginning of impeachment proceedings in order to investigate the reasonableness of charges brought against a specific person, in the exercise of his/her functions, uses the free mandate of a member of the Seimas not in the interests of the People and of the State of Lithuania, but uses that mandate, inter alia, in his/her own personal or group interests.

17.1.6. In this context, it should be mentioned that one of the methods of the parliamentary activities of the opposition based on the views and political objectives of the opposition could consist of demonstrative non-participation by members of the Seimas in meetings of the Seimas, of the committees of the Seimas, or of other units to which they were appointed as members in accordance with the procedure laid down in the Statute of the Seimas, i.e., under the Constitution, obstruction as a type of political protest and a method of parliamentary activity in an attempt to prevent the adoption of a decision that is not acceptable to the minority may, in certain situations, be regarded as a rather important reason for not attending such sittings unless such non-attendance is regular (the Constitutional Court’s ruling (no KT26-N13/2016) of 5 October 2016). In the context of this constitutional justice case, it should be noted that one of the methods of parliamentary activity may include the refusal of the members of the Seimas belonging to the parliamentary minority, inter alia, the parliamentary opposition, to take part in the work of ad hoc structural units of the Seimas (inter alia, in the work of ad hoc investigation commissions of the Seimas), thus expressing a political protest that, in their view, the decisions of the parliamentary majority unjustifiably restrict the rights and guarantees of the functioning of the parliamentary minority, inter alia, those of the parliamentary opposition. It should also be noted that the above-mentioned methods of parliamentary activity do not, in themselves, constitute an obstacle to the exercise by the Seimas of its functions as the parliament of a democratic state under the rule of law.

17.2. The Constitutional Court has held on more than one occasion that legal certainty and clarity is one of the essential elements of the constitutional principle of a state under the rule of law, which implies that any legal regulation is subject to certain mandatory requirements: a legal regulation must be clear and harmonious; legal norms must be formulated precisely and may not contain any ambiguities; the consistency and internal coherence of the legal system must be ensured; legal acts may contain no provisions simultaneously regulating the same social relationships in a different manner (inter alia, the Constitutional Court’s rulings of 30 May 2003, 13 December 2004, and 15 February 2013).

The constitutional principle of a state under the rule of law implies various requirements for law-making entities, including, inter alia, the fact that law-making entities are allowed to pass legal acts only without exceeding their powers; legal acts must be passed in accordance with the established procedural law-making requirements, including the requirements established by the law-making entity itself (inter alia, the Constitutional Court’s rulings of 13 December 2004, 8 July 2016, and 29 June 2018).

The Constitutional Court has held more than once that the principle of a state under the rule of law entrenched in the Constitution also implies the hierarchy of legal acts, inter alia, the fact that substatutory legal acts may not be in conflict with laws, constitutional laws, and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of the application of the norms of a law irrespective of whether that act has one-off (ad hoc) application or permanent validity (inter alia, the Constitutional Court’s rulings of 13 August 2007, 20 February 2013, and 29 June 2018).

As the Constitutional Court has held, the fact that the Seimas does not comply with the Constitution and the Statute of the Seimas in the course of adopting substatutory legal acts means that the constitutional principle of a state under the rule of law, which implies the hierarchy of legal acts, is also violated (the Constitutional Court’s rulings of 20 February 2013 and 27 April 2016).

IV

The European standards for the protection of parliamentary opposition

18. The provisions laid down in the Council of Europe’s acts relating to the role of the parliamentary opposition in democratic processes, the establishment of its rights and obligations are relevant in this constitutional justice case.

18.1. The Parliamentary Assembly of the Council of Europe in a number of its acts has highlighted the importance of the parliamentary opposition.

18.1.1. In its Resolution 1154 (1998) of 20 April 1998 on the democratic functioning of national parliaments, the Parliamentary Assembly of the Council of Europe expressed its belief that member parliaments should give the opposition a status enabling it to play a responsible and constructive role, inter alia, by being allowed to secure the setting up of a committee (commission) of enquiry (point 6.4).

18.1.2. In its Resolution 1547 (2007) of 18 April 2007 on state of human rights and democracy in Europe, the Parliamentary Assembly of the Council of Europe recalled that since the beginning of European integration the right to form a political opposition has been considered an essential element of a genuine democracy; however, opposition parties and their members cannot only ask for rights and means, but should also show responsibility and willingness to use them and make their best efforts to enhance the efficiency of the parliament as a whole; the opposition should not restrict itself to only carrying out its natural but perhaps insufficient role of criticism; the parliamentary majority, however, also has the responsibility to respect the right of the minority to dissent from the majority’s opinion and to promote alternative policies (point 78).

18.1.3. On 23 January 2008, the Parliamentary Assembly of the Council of Europe adopted Resolution 1601 (2008) on procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament (hereinafter referred to as Resolution 1601 (2008)), which calls on the Member States to develop common standards and practices aimed at promoting a free and pluralist parliamentary democracy (point 2). A political opposition in and outside parliament is an essential component of a well-functioning democracy (point 3). The Procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament, which were adopted by this resolution, note that the opposition must participate in parliamentary committees’ (commissions’) work (point 2.6) and that any committee, permanent or not, must be composed on the basis of proportional representation (point 2.6.2).

18.2. In the context of this constitutional justice case, mention should also be made of the provisions of the documents of the European Commission for Democracy through Law (the Venice Commission), acting as an advisory body to the Council of Europe on constitutional matters, which reveal the role of the parliamentary opposition.

18.2.1. At its 84th Plenary Session, which took place on 15–16 October 2010, the Venice Commission adopted the Report on the role of the opposition in a democratic parliament (hereinafter referred to as the Report). The report was drafted in response to the invitation by the Parliamentary Assembly of the Council of Europe, set out in point 11 of Resolution 1601 (2008), to “undertake a study on the role of the opposition in a democratic society”.

Mention should be made of the following provisions of the Report that are relevant to this constitutional justice case:

for opposition party groups a particularly important principle is that of proportional representation – in the parliamentary committees, the allocation of positions, speaking time, distribution of administrative and financial resources, etc.; the principle of proportional representation is an important instrument for ensuring opposition and minority rights (points 63 and 66);

the main principle in any parliamentary democracy is that decisions are taken by majority vote; however, the minority should always be allowed to participate (point 102);

there are certain categories of parliamentary opposition and minority rights that are of particular importance and should be generally recognised, inter alia, such as procedural rights of participation or protection against persecution (point 169).

18.2.2. At its 119th Plenary Session, which took place on 21–22 June 2019, the Venice Commission adopted its Opinion, titled “Parameters on the Relationship between the Parliamentary Majority and the Opposition in a Democracy: a Checklist” (hereinafter referred to as the Opinion), updating the Report, adopted in 2010.

In the context of this constitutional justice case, the following provisions of the Opinion should be mentioned:

in the absence of a genuine political pluralism (which involves the existence of independent and sufficiently strong political parties, free media, fair elections, etc.), the legal guarantees for the opposition in Parliament will remain a dead letter (point 9);

the most fundamental rules on parliamentary opposition and minority rights should preferably be regulated in a form that the majority cannot alter at its own discretion (point 33);

it is important that the opposition is involved in the decisions related to the withdrawal of mandates (point 56);

proportional representation will be useless if all important procedural decisions concerning the functioning of Parliament are taken by the Speaker alone or by a simple majority in Parliament; therefore, representatives of the opposition should have a say in the collective bodies of Parliament, which should have sufficient powers in such procedural matters (point 88);

the principle of proportionate representation is fully applicable to parliamentary inquiry committees (commissions), which however does not preclude creating a parliamentary inquiry committee (commission) where the opposition members will be in a majority or where such a committee (commission) will be chaired by an opposition MP (point 133).

19. In the context of this constitutional justice case, it should be mentioned that the Grand Chamber of the European Court of Human Rights, in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides for freedom of expression, in its judgment of 17 May 2016, delivered in the case of Karácsony and others v Hungary (nos 42461/13 and 44357/13) concerning the freedom of expression of members of the opposition, noted that the Parliamentary Assembly of the Council of Europe had stressed in Resolution 1601 (2008) the need for equal treatment of all MPs; therefore, the rules concerning the internal operation of Parliament should not serve as a basis for the majority abusing its dominant position vis-à-vis the opposition; the protection of the parliamentary minority from abuse by the majority is particularly important (point 147).

20. In the context of this constitutional justice case, mention should also be made of the judgment, delivered on 3 May 2016 by the Second Senate of the German Federal Constitutional Court in the Organstreit proceedings (dispute between constitutional organs) on minority and opposition rights in the German Bundestag. This judgment states that:

the Basic Law of the Federal Republic of Germany contains a general constitutional principle of effective opposition (verfassungsrechtlicher Grundsatz effektiver Opposition), which has been further defined by the case law of the German Federal Constitutional Court; the constitutional protection of the opposition is rooted in the principle of democracy, enshrined in the Basic Law; the formation and exercise of an organised political opposition is constitutive of the free and democratic basic order, as they ensure competition within and outside of parliament between different political forces;

the right “to organised political opposition” is also constitutionally secured by the rule of law;

however, the central role of the parliamentary opposition is carrying out the parliament’s oversight function; in order for the opposition to be able to perform its oversight function, the minority rights provided for in the Basic Law must be interpreted with a view to their effectiveness; the opposition must be given the right to establish a committee (commission) of inquiry and must not be dependent on the parliamentary majority’s benevolence when exercising its oversight powers; the opposition is entrusted with those powers not merely in its own interest, but primarily in the interest of the democratic state in which power is distributed.

On the other hand, this judgment also states that:

the Basic Law does not explicitly create specific rights for parliamentary opposition, nor can an obligation to create such rights be derived from it; this would be incompatible with the principle of equality of the members of the Bundestag, as enshrined in the Basic Law;

within the system of the Basic Law, the rights of the parliamentary opposition are designed as rights of parliamentary minorities; qualifying as a minority provided with such special rights is a matter of reaching a certain quorum with members of the Bundestag.

V

The assessment of the compliance of Paragraph 7 of Article 71 of the Statute of the Seimas with the Constitution

21. As mentioned above, in this constitutional justice case, the petitioner requests an investigation into whether the resolution of the Seimas of 31 May 2018 is in conflict with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.

22. It should be noted that the implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system; therefore, having found the unconstitutionality of a law whose compliance with the Constitution is not impugned by the petitioner, but on which the impugned substatutory legal act is based, the Constitutional Court must state that such a law is unconstitutional; this duty of the Constitutional Court stems from the Constitution and, in this way, the supremacy of the Constitution is ensured (the Constitutional Court’s rulings of 29 November 2001, 29 September 2015, and 15 February 2019).

23. The material of this constitutional justice case shows that the impugned resolution of the Seimas of 31 May 2018 was adopted in accordance with Paragraph 7 of Article 71 of the Statute of the Seimas.

24. As mentioned above, legal certainty and clarity is one of the essential elements of the constitutional principle of a state under the rule of law, which implies that any legal regulation is subject to certain mandatory requirements: a legal regulation must be clear and harmonious; legal norms must be formulated precisely and may not contain any ambiguities; the consistency and internal coherence of the legal system must be ensured; legal acts may contain no provisions simultaneously regulating the same social relationships in a different manner.

25. It has been mentioned that, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may, “in certain instances”, establish another procedure for forming commissions, however, these may not consist of representatives of one political group or one committee; thus, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may establish a procedure for forming commissions that is different from that established in Paragraphs 3–6 of Article 71 of the Statute of the Seimas.

It has also been mentioned that neither Paragraph 7 of Article 71 of the Statute of the Seimas nor other provisions of the Statute of the Seimas specify in detail in which cases such a different procedure for the formation of commissions may be established and do not provide in which legal form (by means of which legal act), under which procedures, and which specific rules for the formation of commissions may be established by the Seimas.

26. It should be held that Paragraph 7 of Article 71 of the Statute of the Seimas, governing the procedure for the formation of commissions of the Seimas, consolidates a legal regulation (which does not specify in which cases such a different procedure for the formation of commissions may be established, and which does not provide in which legal form (by means of which legal act), under which procedures, and which specific rules for the formation of commissions may be established by the Seimas) not meeting the mandatory requirements for a legal regulation such as its clarity and precision; such a legal regulation does not ensure the consistency and internal coherence of the legal system.

Consequently, the legal regulation enshrined in Paragraph 7 of Article 71 of the Statute of the Seimas does not correspond to one of the essential elements of the principle of a state under the rule of law, enshrined in the Constitution, namely legal certainty and clarity.

27. In the light of the above arguments, it should be concluded that Paragraph 7 of Article 71 of the Statute of the Seimas is contrary to the constitutional principle of a state under the rule of law.

VI

The assessment of the compliance of the resolution of the Seimas of 31 May 2018 with the Constitution and the Statute of the Seimas

28. As mentioned above, in this constitutional justice case, the petitioner requests an investigation into the compliance of the resolution of the Seimas of 31 May 2018 with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.

29. The petitioner’s doubts as to the compliance of the impugned resolution of the Seimas with the above-mentioned provisions of the Statute of the Seimas are essentially based on the fact that, in its view, the composition of the Commission became unlawful following the adoption of the impugned resolution of the Seimas, as one of its members had been removed from the Commission's composition, but the number of members of the Commission and the proportion of the representation of the political groups had not been changed; therefore, the procedure, established in the Statute of the Seimas, for the formation of commissions of the Seimas was violated.

30. When deciding on the compliance of the resolution of the Seimas of 31 May 2018 with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas, it should be noted that, as mentioned above, according to the said provisions of the Statute of the Seimas:

in setting up a special investigation commission, first the number of members of the commission is determined, then the rates of the proportional representation of the political groups in the Seimas (thus, also of the political representation of the majority of the Seimas and the minority of the Seimas) and the deadline for proposing candidates for the members of the commission are established; the candidates are proposed by both the majority of the Seimas and the minority of the Seimas, and when the Seimas votes for the candidates proposed by the majority and the minority of the Seimas, the entire list of members of the commission so formed is voted on and, if the list is not approved, the procedure for appointing members of the commission is re-launched and repeated by using the same method;

in setting up a special investigation commission, the said procedures must be followed in order, and one of these procedures is the procedure for proposing candidates for the members of the commission, in which both the majority of the Seimas and the minority of the Seimas must participate.

It has also been mentioned that neither Articles 71 and 232 of the Statute of the Seimas nor other provisions of the Statute of the Seimas contain a specific legal regulation that would provide for the possibility of changing the composition of the special investigation commission.

Thus, it should be held that, under the legal regulation enshrined in the Statute of the Seimas, inter alia, in Articles 71 and 232 thereof, if it becomes necessary to change the composition of a commission of the Seimas, inter alia, that of a special investigation commission, the relevant commission of the Seimas must be formed anew in accordance with the procedure established in the Statute of the Seimas.

31. As mentioned above, after the impugned resolution of the Seimas of 31 May 2018 had amended Article 2 of the resolution of the Seimas of 20 March 2018 by deleting one of the members from the composition of the Commission, the Commission was not formed anew, but only a change in its composition was made.

It should be held that the resolution of the Seimas of 31 May 2018 was adopted without the completion of one of the above-mentioned procedures (established in Paragraph 3 of Article 71 of the Statute of the Seimas, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas) for the formation of special investigation commissions of the Seimas, since neither the majority of the Seimas nor the minority of the Seimas proposed candidates for all the seats of the Commission. Thus, the impugned resolution of the Seimas of 31 May 2018 had been adopted without complying with the requirements (established in Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas) for the formation of special investigation commissions of the Seimas; also, the requirement, laid down by the Statute of the Seimas, inter alia, Articles 71 and 232 thereof, that, if it becomes necessary to change the composition of a commission of the Seimas, inter alia, that of a special investigation commission, the relevant commission of the Seimas must be formed anew in accordance with the procedure established in the Statute of the Seimas, had thus been disregarded.

32. It needs to be noted that the impugned resolution of the Seimas of 31 May 2018 may not be based on Paragraph 7 of Article 71 of the Statute of the Seimas, which, as stated in this ruling of the Constitutional Court, is in conflict with the constitutional principle of a state under the rule of law.

33. Taking into account the foregoing arguments, it should be concluded that the resolution of the Seimas of 31 May 2018 is in conflict with Paragraph 3 of Article 71 and the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.

34. It should be noted that Paragraph 1 of Article 7 of the Constitution provides that any law or other act that contradicts the Constitution is invalid.

The Constitutional Court has held on more than one occasion that the principle of the supremacy of the Constitution means that the Constitution stands in the exceptional, highest, place in the hierarchy of legal acts; no legal act may be in conflict with the Constitution; no one is permitted to violate the Constitution; the constitutional order must be defended (inter alia, the Constitutional Court’s rulings of 24 December 2002, 29 March 2012, and 11 July 2014).

Thus, in the light of the principle of the supremacy of the Constitution, it should be noted that Constitutional Court, when examining, subsequent to the petition filed by a petitioner, whether an impugned substatutory legal act (part thereof) is in conflict with legal acts that have the force of a law, after it finds that the impugned substatutory legal act (part thereof) is in conflict with the Constitution, has the power to state that such a substatutory legal act (part thereof) is unconstitutional.

35. In this ruling of the Constitutional Court, it has been stated that:

according to Article 76 of the Constitution, the structure and procedure of work of one of the state authorities, the Seimas, is established by the Statute of the Seimas, having the force of a law;

certain questions linked with the formation of the structural units of the Seimas, the establishment of their competence, the formation of their composition, or the formulation of tasks to them may be decided by means of substatutory legal acts of the Seimas;

the Constitution, inter alia, the principles of the organisation and operation of the State of Lithuania and the concept of a pluralistic parliamentary democracy, which are implied by the constitutional principle of a state under the rule of law, require, in accordance with Article 76 of the Constitution, the establishment of such a structure and procedure of activities of the Seimas that would ensure the effective protection of the rights of the parliamentary minority, inter alia, those of the parliamentary opposition, and guarantees for its activities; this means, inter alia, that the principle of proportional representation must be ensured in the formation of the structural units of the Seimas (inter alia, committees and commissions of the Seimas), and that the composition of such structural units of the Seimas, inter alia, changes in the said composition, must not depend solely on the discretion of the parliamentary majority;

under the Constitution, inter alia, Article 76 thereof, and the constitutional principle of a state under the rule of law, the composition of an ad hoc investigation commission of the Seimas, inter alia, of a commission of the Seimas set up before the beginning of impeachment proceedings in order to investigate the reasonableness of charges brought against a specific person, cannot be changed solely at the discretion of the parliamentary majority in the absence of clear and constitutionally justified reasons; such reasons could include, inter alia, the situation where a member of an ad hoc investigation commission of the Seimas, inter alia, of a commission of the Seimas set up before the beginning of impeachment proceedings in order to investigate the reasonableness of charges brought against a specific person, in the exercise of his/her functions, uses the free mandate of a member of the Seimas not in the interests of the People and of the State of Lithuania, but uses that mandate, inter alia, in his/her own personal or group interests.

36. As mentioned above:

following the amendment of Article 2 of the resolution of the Seimas of 20 March 2018 by the impugned resolution of the Seimas of 31 May 2018, one of its members, Andrius Kubilius, a member of the Seimas, belonging to the opposition political group of the Homeland Union – Lithuanian Christian Democrats, was removed from the Commission;

by the impugned resolution of the Seimas of 31 May 2018, no other member of the Seimas was appointed instead of the removed member of the Seimas; the remaining composition of the Commission remained unchanged, leaving 11 members instead of 12;

Article 1 of the resolution of the Seimas of 20 March 2018, according to which the Commission comprised 12 members, was not amended by the impugned resolution of the Seimas of 31 May 2018.

Consequently, the removal of Seimas member Andrius Kubilius from the Commission had reduced the number of the representatives of the minority of the Seimas, inter alia, those of the opposition political groups, and the failure to change the number of members of the Commission had changed the proportion of the representation of the political groups of the Seimas in the Commission.

37. It has been mentioned that the draft (No XIIIP-2154) of the impugned resolution of the Seimas does not specify the circumstances and reasons that led to the submission of this draft resolution.

It has also been mentioned that the draft (No XIIIP-2154) of the impugned resolution of the Seimas was prepared following the publication in the press of the information on the basis of which it was presumed that there was a potential conflict between public and private interests of the member of the Commission Andrius Kubilius.

It should be noted that the adoption of the resolution of the Seimas of 31 May 2018 was based solely on information that had appeared in the press, since, as mentioned above, at its meeting of 30 May 2018, the VTEK decided not to open an investigation into the compatibility of the conduct of Seimas member Andrius Kubilius with the provisions of the Law on the Coordination of Public and Private Interests in State Service; it has also been mentioned that, at its meeting of 13 June 2018, the Commission for Ethics and Procedures of the Seimas also decided not to open an investigation into the conduct of Seimas member Andrius Kubilius.

38. Accordingly, in the light of these circumstances, it must be held that the impugned resolution of the Seimas of 31 May 2018, by which Seimas member Andrius Kubilius, belonging to the opposition political group of the Homeland Union – Lithuanian Christian Democrats, was removed from the Commission, was adopted without examining, in accordance with the procedure laid down by law, the information on the basis of which it was presumed that there was a potential conflict between public and private interests of the member of the Commission Andrius Kubilius; thus, it was adopted in the absence of clear and constitutionally justified reasons.

Therefore, it should also be held that, when adopting the impugned resolution of the Seimas of 31 May 2018, the Seimas had disregarded the following requirements, arising from the Constitution, inter alia, from Article 76 thereof and the constitutional principle of a state under the rule of law: (1) to ensure the proportional representation of the parliamentary majority and the parliamentary minority, inter alia, parliamentary opposition, in the formation of structural units of the Seimas (inter alia, the committees and commissions of the Seimas); (2) not to change, at the sole discretion of the parliamentary majority and in the absence of clear and constitutionally justified reasons, the composition of an ad hoc investigation commission of the Seimas, inter alia, the composition of a commission of the Seimas set up before the beginning of impeachment proceedings in order to investigate the reasonableness of charges brought against a specific person.

39. In the light of the above arguments, it should be concluded that the resolution of the Seimas of 31 May 2018 is in conflict with Article 76 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

40. As mentioned above, by means of the resolution of the Seimas of 30 June 2018, the Seimas upheld the Commission’s conclusion that there were no grounds to begin impeachment proceedings against Seimas member Artūras Skardžius.

40.1. In this context, it should be noted that, when interpreting Paragraph 1 of Article 107 of the Constitution, the Constitutional Court has disclosed the content (which arises from the said paragraph) of the presumption of the constitutionality of legal acts and the legitimacy of the consequences of their application, which stems from the Constitution: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a law (part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (part thereof) is in conflict with the Constitution, means that, as long as the Constitutional Court has not officially published the decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal consequences that have appeared on the basis of the act in question are legitimate (inter alia, the Constitutional Court’s rulings of 30 December 2003, 25 October 2011, and 16 April 2019).

40.2. Thus, in the context of this constitutional justice case, it should be noted that the presumption of the lawfulness of the legal consequences resulting from the resolution of the Seimas of 31 May 2018, which was declared to be unconstitutional and contrary to the Statute of the Seimas, inter alia, the presumption of the lawfulness of the resolution of the Seimas of 30 June 2018, is not negated. In particular, the fact that one of the 12 members was removed from the Commission in violation of the Constitution is not such as to create grounds for calling into question the constitutionality of the resolution of the Seimas of 30 June 2018, insofar as the said resolution upheld the Commission’s conclusions.

40.3. Thus, the fact that it was held in this ruling of the Constitutional Court that the resolution of the Seimas of 31 May 2018 is in conflict with Article 76 of the Constitution and the constitutional principle of a state under the rule of law, as well as with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas, does not, in itself, justify calling into question the constitutionality of the resolution (No XIII-1425) of the Seimas of 30 June 2018 on upholding the conclusion of the special investigation commission of the Seimas of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 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: 

1. To recognise that Paragraph 7 of Article 71 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998; Official Gazette Valstybės žinios, 1999, No 5-97) is in conflict with the constitutional principle of the rule of law.

2. To recognise that the resolution (No XIII-1227) of the Seimas of the Republic of Lithuania of 31 May 2018 amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March 2018 on forming a special investigation commission of the Republic of Lithuania for an investigation into the reasonableness of the motion submitted by a group of members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment proceedings (Register of Legal Acts, 06-06-2018, No 9506, identification code 2018-09506) is in conflict with Article 76 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, as well as with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998).

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

              Justices of the Constitutional Court:      Elvyra Baltutytė

                                                                                         Gintaras Goda

                                                                                         Vytautas Greičius

                                                                                         Danutė Jočienė

                                                                                         Gediminas Mesonis

                                                                                         Vytas Milius

                                                                                         Daiva Petrylaitė

                                                                                         Janina Stripeikienė

                                                                                         Dainius Žalimas