THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 21/2003 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 4 OF THE REPUBLIC OF LITHUANIA S LAW ON THE SUPPLEMENT AND AMENDMENT OF ARTICLES 86 AND 87 OF THE LAW ON ELECTIONS TO MUNICIPAL COUNCILS AND ITS SUPPLEMENT WITH ARTICLE 88 1 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 457) ON THE DISMISSAL OF THE CHIEF OF THE VILNIUS COUNTY OF 11 APRIL 2003 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 9 OF THE REPUBLIC OF LITHUANIA S LAW ON THE PROCEDURE OF THE PUBLICATION AND ENTRY INTO FORCE OF LAWS AND OTHER LEGAL ACTS OF THE REPUBLIC OF LITHUANIA 30 May 2003 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas The court reporter Daiva Pitrėnaitė Nijolė Šidagienė, Chairperson of a panel of judges, acting as the representative of the Vilnius Regional Administrative Court, the petitioner Seimas member Petras Papovas and Pranas Žukauskas, chief specialist of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned

2 2 Rasa Budbergytė, Secretary of the Ministry of the Interior of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, a party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 13 May 2003, in its public hearing, considered case No. 21/2003 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation 1) into whether Paragraph 2 of Article 4 of the Republic of Lithuania s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 which provides that the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office was not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution of the Republic of Lithuania; 2) into whether the Resolution of the Government of the Republic of Lithuania (No. 457) On the Dismissal of the Chief of the Vilnius County of 11 April 2003 was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania and Paragraph 1 of Article 9 of the Republic of Lithuania s Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania. The Constitutional Court has established: I The petitioner, the Vilnius Regional Administrative Court, was considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation 1) into whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 (Official Gazette Valstybės žinios, 2003, No ; hereinafter also referred to as the Law) which provides that the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the

3 3 elections to municipal councils of the next term of office was not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution. 2) into whether the Government Resolution (No. 457) On the Dismissal of the Chief of the Vilnius County of 11 April 2003 (Official Gazette Valstybės žinios, 2003, No ) was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Paragraph 1 of Article 9 of the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania. II The petition of the petitioner is based on the following arguments. 1. In its ruling of 24 December 2002, the Constitutional Court held that the Constitution consolidates the principle of the prohibition on a dual mandate and that the same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented. In addition, under the Constitution, the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either. In the said ruling, the Constitutional Court held, inter alia, that if a person discharging the functions of state authority, or a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, is elected a member of a municipal council, he, before the newly elected municipal council convenes to the first sitting, must decide whether to remain in his previous office or to be a member of the municipal council. On 28 January 2003, the Seimas adopted the Republic of Lithuania s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 and established by Article 1 of the said law that the office of a municipal council member shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration. The legislature established in Paragraph 2 of Article 4 of the said law that the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office. The petitioner notes that such legal regulation permitted certain persons during the first sitting of the municipal council to hold the office of a municipal council member and, at the same time, the office

4 4 of a member of the Seimas or other office incompatible with the office of a municipal council member. Therefore, the court had doubts whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 is not in conflict with the principle of the separation of powers entrenched in Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and the principle of the prohibition on a dual mandate entrenched in Paragraphs 1 and 2 of Article 60 of the Constitution. 2. By the impugned Resolution On the Dismissal of the Chief of the Vilnius County of 11 April 2003, the Government dismissed Gediminas Paviržis from the office of the Chief of the Vilnius County as from the date indicated in his application. The said resolution was published in the official gazette Valstybės žinios on 16 April 2003; the resolution did not establish a later date of its entry into force. According to the petitioner, G. Paviržis handed in his application to the Government, requesting dismissing him from office on 8 April It is noted in the petition of the petitioner that, according to Paragraph 1 of Article 9 of the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania, the resolutions by the Government shall come into force following the day, when signed by the Prime Minister and the appropriate minister, they shall be published in the official gazette Valstybės žinios, provided a later date of their coming into force has not been established by the resolution itself. Therefore, the court had doubts whether the impugned government resolution was not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Paragraph 1 of Article 9 of the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania. III In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, a party concerned, who were P. Papovas, a member of the Seimas, and P. Žukauskas, chief specialist of the Legal Department of the Office of the Seimas, and the representative of the Government, a party concerned, who was R. Budbergytė, Secretary of the Ministry of the Interior. 1. It is noted in the explanations by the representative of the Seimas, a party concerned, who was P. Papovas, that the Constitutional Court s ruling of 24 December 2002 was adopted in the case in which one did not investigate the issues of the compliance of the provisions of the Law on Elections to Municipal Councils. The representative of the party concerned maintains that the Constitution does not contain any prohibition for a member of the Seimas against holding the office of a municipal council member, as, under Paragraph 1 of Article 60 of the Constitution, the duties of a member of the

5 5 Seimas, with the exception of his duties in the Seimas, shall be incompatible with any other duties in state institutions and organisations, meanwhile, the municipal council is a municipal institution but not a state institution or organisation. Therefore, in the opinion of the representative of the party concerned, until the said ruling of the Constitutional Court went into effect, members of the Seimas were not prohibited from being municipal council members, either. P. Papovas also notes that, under the Republic of Lithuania s Law on Administrative Supervision of Municipalities, representatives of the Government shall exercise administrative supervision of municipalities, who are prohibited, by law, to be members of the councils of the municipalities which are supervised by them. The representative of the party concerned doubts whether the county chief or his deputy should be categorised as persons exercising the functions of implementation of state authority, or as state officials who, under the Constitution and laws, enjoy the powers to control or supervise activities of municipalities. Therefore, P. Papovas believes that until the Constitutional Court s ruling of 24 December 2002 went into effect, county chiefs and their deputies had been allowed to be members of municipalities. It is noted in the explanations of the representative of the party concerned that the Constitutional Court s ruling of 24 December 2002 was adopted after the elections of municipal councils. Until the said ruling went into effect, and until the elections to municipal councils, members of the Seimas, county chiefs and their deputies, according to the laws of the Republic of Lithuania, were permitted to be municipal council members as well. Therefore, they, when taking part in the elections of municipal councils, expected to become members of the councils and undertook certain obligations to the voters. In the opinion of P. Papovas, in this case one ought to apply the principle of legitimate expectations. The representative of the Seimas points out that a municipal council member begins to hold his office, i.e. acquires the powers of a municipal council member, only at the first sitting of the municipal council. In the opinion of P. Papovas, the provisions of the law concerning the decision to hold the previous office until the first sitting of the council and those concerning the dismissal from office after one begins to hold the office of a council member, do not contradict each other. According to the representative of the Seimas, the provision an elected member of the council, who has decided to refuse the mandate of a member of the council, not later than 10 days from the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it to the said commission as confirmed by the notary, on the refusal of the mandate of a member of the municipal council of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils provides for the procedure for the refusal of the mandate of a municipal council member and the time before the first sitting of the council. According to P. Papovas, the provision consolidated in Paragraph 2 of Article 4 of the Law on the Supplement and

6 6 Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 that the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office do not deny an opportunity for a person elected as a municipal council member to refuse the mandate of a municipal council member before the first sitting; besides, this norm is of a one-off character. The representative of the Seimas notes that if one does not refuse the office of the municipal council member until the first sitting of the council, the Central Electoral Commission has the cause to recognise, within 15 days, the powers of the municipal council member to be terminated. Thus, according to the assessment by P. Papovas, the legislature, while adopting the provision not to apply the norms of Paragraph 2 of Article 88 1 to the members of municipal councils of the term of office concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council virtually did not deny an opportunity to do so in a voluntary manner, also, it did not deny the constitutional principle of the prohibition on a dual mandate nor the prohibition against being a municipal council member and, at the same time, holding an office incompatible with the office of a council member. In the opinion of the representative of the Seimas, while adopting the impugned provision of the Law, the Seimas did not violate the provisions of Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution. 2. The representative of the party concerned P. Žukauskas notes in his explanations that the impugned norm of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 which provides for exceptions for the prohibition on the compatibility of the office of a municipal council member and a person, who, according to his office, discharges the functions of implementation of state authority or who has the right to control or supervise the activity of municipalities, is not directly related to Paragraph 1 of Article 5 of the Constitution. Paragraph 1 of Article 5 of the Constitution consolidates the principle of the separation of powers and establishes the list of institutions implementing state authority. This provision of the Constitution does not encompass the legal relations of local self-government or legal regulation of the status of the officials implementing state authority, therefore, in the opinion of the representative of the Seimas, the impugned norm of the law should not be regarded as conflicting with Paragraph 1 of Article 5 of the Constitution. While assessing the relation of the impugned norm with the provisions of Paragraph 1 of Article 7 and Paragraphs 1 and 2 of Article 107 of the Constitution, the representative of the party

7 7 concerned maintains that, after the impugned legal norm had been adopted, one did not create a legal situation by which one would have attempted to overcome or overrule the decision of the Constitutional Court or to adopt a clearly anti-constitutional legal norm. P. Žukauskas draws one s attention to the fact that the Constitutional Court did not consider the constitutionality of the Law on Elections to Municipal Councils and that, in its ruling of 24 December 2002, it did not discuss the procedure, terms etc. of the refusal of the mandate. The representative of the party concerned also underlines that while assessing the compliance of the impugned norm with the Constitution, one has to assess not only its relations with individual provisions of the Constitution. Paragraph 1 of Article 6 of the Constitution contains the provision that the Constitution shall be an integral and directly applicable act. The Constitution consolidates one of the fundamental principles of constitutional law and of law in general, which is the principle of a state under the rule of law, which implies, among other things, legal certainty and stability as well as protection of legitimate expectations. According to the representative of the Seimas, by the impugned norm one attempted to state the aim of the legislature to evade a legal situation in which the legal status of the persons elected as municipal council members during the 2002 municipal council elections would become a matter of different legal regulation. Thus, the legitimate expectations of the residents who had made use of both the active and passive electoral right would virtually have been disregarded, the results of the elections to municipal councils would have been distorted and the formation of the municipal councils would have been disarrayed. Having established that candidates for the municipal councils of the next term of office have to be aware already prior to the elections that they must refuse the work incompatible with the office of a municipal council member, the Seimas attempted to follow the principles of a harmonious civil society and state under the rule of law and those of democracy, which are expressed in the Constitution; the legislature showed that he was willing to follow the provision that in a state under the rule of law democratic standards are also expressed by the fact that one cannot establish any procedures, which would violate democratic standards on a level (or in part) of the state. The 2002 municipal council elections took place in the legal situation in which the laws did not establish any procedure for a loss of the mandate of a municipal council member due to the incompatibility qualification, therefore, the regulation of the formation of municipal councils under different standards would distort the will of the voters and the principle of equal elections. Taking account of the reasoning of the legislature at the time of the adoption of the impugned norm of the law, the representative of the Seimas believes that Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 is not in conflict with the Constitution as

8 8 an integral and directly applicable act, thus, also with Paragraph 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution. 3. The representative of the Government, a party concerned, R. Budbergytė notes as to the compliance of the impugned government resolution with the Constitution and the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania that the principle lex retro non agit is related with the validity of only normative legal acts but not with that of individual legal acts, since only normative legal acts formulate a common rule of conduct the compliance with which cannot be applied to a person at the time of his activity as to a rule of conduct that he is not aware of. The representative of the Government points out that no rule of general conduct is formulated by the impugned government resolution: it is designed for a concrete subject, i.e. G. Paviržis, Chief of the Vilnius County; this resolution does not regulate general relations, but it decides a particular situation, i.e. the end of service of a concrete public servant. Thus, in the opinion of R. Budbergytė, government resolution No. 457 of 11 April 2003 may not be held a normative legal act in whose regard the principle of the prohibition on the retroactive validity of the law is applicable. According to the representative of the Government, it is not permitted to apply the principle of the prohibition on the retroactive validity of the law to individual acts of the application of law, since they, as a rule, regulate legal relations of the past. In the opinion of R. Budbergytė, since the impugned government resolution is an individual act of application of law, its legality is determined not by its compliance with the Constitution, laws and other legal acts, but by just and lawful application of the said legal act to the legal relations regulated by it. Therefore, in the opinion of the representative of the Government, the said resolution is in not conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution. In the explanations of the representative of the party concerned it is also noted that the Government, while implementing the competence established to it by law, must state its will not only in deciding the affairs of state administration, but also regulating other relations, which are or can be the basis of the administration of state governance. According to R. Budbergytė, the impugned resolution of the Government was deciding not affairs of state administration but regulated legal relations of public service, which are the basis of state administration. The representative of the Government also notes that the basis of the adoption of the government resolution of 11 April 2003 was the application of 7 April 2003 by G. Paviržis, Vilnius County Chief, which was grounded on the fact that he had been elected a member of the municipal council of the Vilnius city, and the protocol decision of the 9 April 2003 government sitting, stating

9 9 that one has to take account of the information submitted by the Minister of the Interior J. Bernatonis, that G. Paviržis, Vilnius County Chief, submitted his application to the Prime Minster requesting dismissing him from the office of the Chief of the Vilnius County, as he is elected to the municipal council of Vilnius city, while the draft resolution of the Government of the Republic of Lithuania, formalising this dismissal shall be presented for the nearest sitting of the Government of the Republic of Lithuania (question 14 of sitting protocol No. 16). In the opinion of R. Budbergytė, the Constitutional Court, when it held in its ruling of 29 November 2001 that only one type of legal acts of the Government that it is entitled to adopt, while resolving the affairs of state administration, is established in the Constitution, which is a resolution, emphasised that the will of the Government is stated when it implements affairs of state administration, but not to regulate the (employment) relations of public service, which are or can be the basis of administration of state governance. The representative of the Government maintains that the Government, while deciding the issue of dismissal of the Chief of the Vilnius County, i.e. when it was expressing its will in the field of the legal relations of public service, it was not necessarily supposed to be expressed by adopting a resolution and, since the said resolution is an individual act of application of law, the will expressed by the Government should not and could not be prospective, as the said resolution regulated legal relations of the past. The representative of the Government maintains that the Government expressed its will as regards the dismissal of the Chief of the Vilnius County by adopting the aforesaid protocol decision, which, subsequently, i.e. at the 11 April 2003 sitting, was formalised by government resolution, which was published in the official gazette Valstybės žinios and went into effect under the conditions and procedure set down in Paragraph 1 of Article 9 of the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania. In the opinion of R. Budbergytė, government resolution No. 457 of 11 April 2003 is not in conflict with Paragraph 1 of Article 9 of the Law On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania. IV 1. At the Constitutional Court hearing, the representative of the petitioner N. Šidagienė, the representatives of the parties concerned P. Papovas, P. Žukauskas and R. Budbergytė virtually reiterated the arguments set forth in their written explanations and presented additional explanations. 2. N. Šidagienė, the representative of the Vilnius Regional Administrative Court, emphasised that the petitioner does not impugn the constitutionality of the amendments of Articles 86 and 88 1 of the Law on Elections to Municipal Councils, which were adopted on 28 January 2003, however, after one had established by Paragraph 2 of Article 4 of the Law on the Supplement

10 10 and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 that the beginning of the application of the said amendments, which changed the legal regulation that had been in conflict with the Constitution, was to be postponed until the election of municipal councils of the next term of office, one created an opportunity to apply the former unconstitutional legal regulation, which existed until 28 January P. Papovas, a representative of the Seimas, a party concerned, explained that the provision of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1, which is impugned by the petitioner, granted the right to the persons which hold the office incompatible with the office of a municipal council member to participate in the first sitting of newly elected municipal councils. 4. P. Žukauskas, a representative of the Seimas, a party concerned, explained that the elections to the municipal councils of the term of office had taken place before the adoption of the Constitutional Court s ruling of 24 December 2002 in which it was held that that the Constitution consolidates the principle of the prohibition on a dual mandate. In the opinion of P. Žukauskas, if one starts to apply this principle to the persons who have been elected without applying this principle, one would distort the will of the voters for municipal councils and violate their legitimate expectations. According to the representative of the Seimas, by the provision of the Law, which is impugned by the petitioner, the legislature attempted to protect legitimate expectations. 5. R. Budbergytė, the representative of the Government, a party concerned, explained that, in her opinion, the Government can decide the question of dismissal of the chief of a county from office by adopting a so-called protocol decision (i.e. a decision, which is formalised by entering it into the minutes of the government sitting). According to the representative of the Government, G. Paviržis was dismissed from the office of the Chief of the Vilnius County by the protocol decision of 9 April The Constitutional Court holds that: I On the compliance of Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution.

11 11 1. On 28 January 2003, the Seimas adopted the Republic of Lithuania s Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1, which provides: Article 1. Supplement of Article 86 with Item 9 To supplement Article 86 with Item 9: 9) if a council member takes the office or does not refuse the office incompatible with the office of a municipal council member. Article 2. Amendment of Paragraph 1 of Article 87 After the word terminated in Paragraph 1 of Article 87, to enter the words or he loses the mandate of a council member and set forth this paragraph as follows: 1. A vacant position of a council member occurs if the powers of the council member are recognised as terminated or he loses the mandate of a council member. It is occupied in the following way: the first candidate who did not receive the mandate, from the post-elections candidate list according to which the former council member had been elected, shall become a council member. If there are no more candidates who did not receive the mandate on this list, the mandate of a council member shall be transferred to another list according to the order of succession of the lists of candidates made after the election for the distribution of mandates by the method of remainders, i.e., the list which comes first following the list which was the last to receive its mandate according to this order of succession, and the first candidate who has not received his mandate and who appears on the list with the newly-received mandate shall become a council member. The Central Electoral Commission must adopt the decision concerning recognition of the mandate of a council member for a new council member within 7 days after the occurrence of the vacant seat in the council. Article 3. Supplementing Article 88 1 to the Law To supplement the Law with Article 88 1 : Article The office incompatible with the office of a municipal council member, and the loss of the mandate of a council member 1. The office of a council member shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration. 2. If a person, when holding the office specified in Paragraph 1 of this Article, is elected a municipal council member or, being a municipal council member holds or begins to hold the office

12 12 specified in Paragraph 1 of this Article, he must make a choice and refuse either this office, or the mandate of a municipal council member. An elected member of the council, who has decided to refuse the mandate of the council member, not later than 10 days until the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it as confirmed by the notary, on the refusal of the mandate of a municipal council member. Upon receiving the application, the Central Electoral Commission by the rights of the mandate commission shall, not later than 7 days until the first sitting of the municipal council, adopt a decision concerning the loss of the mandate of a municipal council member and recognition of the mandate of a new council member. Candidates to a vacant seat of a council member from the postelectoral list who have decided to refuse the mandate of a council member, must also hand in an application to the Central Electoral Commission concerning the refusal of the mandate of a municipal council member not later than 7 days until the first sitting of the municipal council. The Central Electoral Commission shall adopt a decision concerning a person who enjoys the powers of a council members and holds or begins to hold the office incompatible with the office of a municipal council member, according to the procedure consolidated in Articles 86 and 87 of this Law. Article 4. Final provisions 1. This Law shall come into force on 25 February The norms of Paragraph 2 of Article 88 1 of the Law on the Elections to the Municipal Council as stipulated in Article 3 of the Law concerning the refusal of the mandate of a council member by a person elected as a municipal council member until the first sitting of the municipal council shall be applied from the elections to the municipal councils of the next term of office. 2. The petitioner requests an investigation into whether Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 which provides that the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning the refusal of the mandate of a municipal council member by a person elected as a municipal council member until the first sitting of the municipal council are applied from the elections to municipal councils of the next term of office is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 4 of Article 59 and Paragraphs 1 and 2 of Article 60 of the Constitution of the Republic of Lithuania. 3. It is clear from the case material that the said law was adopted as a reaction to the Constitutional Court s Ruling On the Compliance of Paragraph 3 of Article 3 (Wording of 12 October 2000), Paragraph 4 of Article 3 (Wording of 12 October 2000), Item 2 of Paragraph 1 of Article 5 (Wording of 12 October 2000), Paragraph 1 of Article 18 (Wording of 12 October 2000), Items 2, 3, 4, 8, and 15 of Paragraph 1 of Article 19 (Wording of 12 October 2000), Items 1, 5, 7, 9,

13 13 12, 15, 16, 17, and 18 of Paragraph 1 of Article 21 (Wording of 12 October 2000), Item 6 of the Same Paragraph (Wordings of 12 October 2000 and 25 September 2001), and Item 14 of the Same Paragraph (Wordings of 12 October 2000 and 8 November 2001) of the Republic of Lithuania s Law on Local Self-Government, as well as the Republic of Lithuania s Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution, and the Republic of Lithuania s Law on the Entering of the Constitutional Law on the Procedure of the Application of the Law on the Alteration of Article 119 of the Constitution on the List of Constitutional Laws, with the Constitution of the Republic of Lithuania of 24 December It was held in the Constitutional Court s ruling of 24 December 2002 that, according to the Constitution, state administration and local self-government are two systems of public authority, that the same persons may not discharge the functions in the implementation of state authority and, at the same time, be members of municipal councils, through which the right of self-government is implemented, that the Constitution consolidates the principle of the prohibition on a dual mandate, that the state officials who, according to the Constitution and laws enjoy the powers to control or supervise the activities of municipal councils, may not be members of municipal councils, either. It was also stated in the said ruling of the Constitutional Court that in cases when there occurs a legal situation when a person discharging the functions of state authority, or a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, is elected a member of a municipal council, he, before the newly elected municipal council convenes to the first sitting, must decide whether to remain in office or to be a member of the municipal council. It has to be noted that the wording he, before the newly elected municipal council convenes to the first sitting, must decide whether to remain in office or to be a member of the municipal council, employed in the Constitutional Court s ruling of 24 December 2002, means that before the newly elected municipal council convenes to the first sitting, the person must, according to the procedure established by law, declare his decision either to remain in office or to be a member of the municipal council, also that before the newly elected municipal council convenes to the first sitting, the question of the legal status of this person must be decided: if the person has decided to be a member of the municipal council, then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost his office which was incompatible with the office of a member of the municipal council, but if the person has decided to remain in office and not to be a member of the municipal council then, before the newly elected municipal council convenes to the first sitting, it must be stated, under the procedure established by law, that he has lost the mandate of a member of the municipal council. The law

14 14 must establish the legal regulation, according to which the said question of the legal status of the person is decided before the newly elected municipal council convenes to the first sitting. 4. Paragraph 2 of Article 4 of the Law on the Supplement and Amendment of Articles 86 and 87 of the Law on Elections to Municipal Councils and Its Supplement with Article 88 1 establishes the procedure of application of the norms of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils which are stipulated in Article 3 of the Law. Thus, the provisions of Paragraph 2 of Article 4 and those stipulated in Article 3 of the Law are inseparable, therefore, the content of the impugned Paragraph 2 of Article 4 of the law should be construed, while taking account of the provisions of Article 88 1 of the Law on Elections to Municipal Councils provided by Article 3 of the Law It has been mentioned that the legislature supplemented the Law on Elections to the Municipal Councils with Article 88 1 by Article 3 of the Law and established by Article 1 that the office of a member of the municipal council shall be incompatible with the office of the President of the Republic, a member of the Seimas, a member of the Government, or of a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also with the office of the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration. In Paragraph 2 of Article 88 1 of the Law on Elections to the Municipal Councils, the legislature consolidated, inter alia, the provisions which obligate the person, who holds the office specified in Paragraph 1 of this article and is elected as a member of the municipal council, to make a choice and refuse either this office, or the mandate of a member the municipal council, and established that an elected member of the council, who has decided to refuse the mandate of the council member, not later than 10 days until the first sitting of the municipal council shall hand in an application to the Central Electoral Commission, or shall send it as confirmed by the notary, on the refusal of the mandate of a municipal council member. Upon receiving the application, the Central Electoral Commission by the rights of the mandate commission shall, not later than 7 days until the first sitting of the municipal council, adopt a decision concerning the loss of the mandate of a municipal council member and recognition of the mandate of a new council member. Thus, the said provisions of Paragraph 2 of Article 88 1 obligate the person who is elected as a member of the municipal council and who holds the office incompatible with the office of a council member to refuse either this office or the mandate of a member of the municipal council before the newly elected municipal council convenes to the first sitting It has been mentioned that Paragraph 2 of Article 4 of the Law provides that the provisions of Paragraph 2 of Article 88 1 of the Law on Elections to Municipal Councils concerning

15 15 the refusal of the mandate of a council member by a person elected as a municipal council member until the first sitting of the municipal council shall be applied from the elections to the municipal councils of the next term of office. While construing the content of legal regulation established by Paragraph 2 of Article 4 of the Law, one should pay attention to the fact that the Law came into force on 25 February The elections to the municipal councils of the term of office were held on 22 December It should be noted that upon the entry into force of this law, the first sittings of the newly elected municipal councils of the term of office had not been held yet. Thus, the legal regulation established by Paragraph 2 of Article 4 of the Law means that a person elected to the municipal council during the elections to the municipal councils of the term of office, whose office is incompatible with the office of a member of the municipal council and who has decided to refuse the mandate of a member of the municipal council under Article 3 of the Law, need not declare his decision to refuse the mandate of a member of the municipal council before the first sitting of the newly elected municipal council, and that it need not be stated before the first sitting of the newly elected municipal council that the person in question has lost the mandate of a member of the municipal council. Alongside, this legal regulation implies that the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration may keep their office and be members of the municipal council if they are elected as members of the municipal councils. Thus, the application of the provision of Paragraph 1 of Article 88 1 of the Law on Elections to the Municipal Councils is in fact postponed by the legal regulation provided for by Paragraph 2 of Article 4 of the Law until the elections to the municipal councils of the next term of office. 5. The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). The constitutional norms are interrelated and constitute an indivisible and harmonious system. It is not permitted to oppose a constitutional provision against other provisions of the Constitution, or to construe it so that the essence of other constitutional norms would be denied or distorted. The Constitutional Court, while investigating, subsequent to the petition of the petitioner, whether the impugned legal act (part thereof) is not in conflict with the articles (parts thereof) of the Constitution pointed out by the petitioner, alongside also investigates whether the said legal act (part thereof) is not in conflict with the Constitution, an indivisible and harmonious system (the Constitutional Court s ruling of 24 December 2002).

16 16 In its ruling of 13 June 2000, the Constitutional Court held that it is impossible to interpret the norms set forth in the articles (parts thereof) of the Constitution which were pointed out by the petitioner by keeping them separate from other norms of the Constitution, also, that the Constitutional Court, after it has decided that the impugned act (part thereof) conflicts with the articles (parts thereof) of the Constitution which have not been pointed out by the petitioner, is empowered to state so. 6. While deciding whether Paragraph 2 of Article 4 of the Law is not in conflict with the Constitution, one should take account of the content of state administration and local selfgovernment, as two systems of public authority, as well as of the status of a member of the municipal council, and that of persons specified in Paragraph 1 of Article 88 1 of the Law on Elections to the Municipal Councils: the President of the Republic, a member of the Seimas, a member of the Government, a state official who, under the Constitution and laws, enjoys the powers to control or supervise activities of municipalities, also the county chief, deputy county chief, the controller of the municipality, a public servant of the service of the controller of the municipality, director of the municipal administration and his deputy or a public servant of the municipal administration, which are consolidated in the Constitution and/or laws. 7. Under the Constitution, state administration and local self-government are two systems of public authority The municipality is a community of a territorial administrative unit of the state established by law, which enjoys the right of self-government guaranteed by the Constitution. In its ruling of 18 February 1998, the Constitutional Court held that the Constitution determines local self-government as a public administration system operating on the basis of self-action principles, and which is not directly subordinate to state authority institutions. The provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, should be regarded as a guarantee of the participation of these local communities in administration of these territories (the Constitutional Court s ruling of 28 June 2001). Local self-government is the power of communities of administrative territorial units established by law, which is formed and operates on different constitutional grounds than state administration. The Constitution does not identify self-government with state administration (the Constitutional Court s rulings of 14 January 2002 and 24 December 2002). State administration and local self-government, as two systems of the implementation of public authority, are interrelated, however, each of them implements its characteristic functions. State administration shall be implemented through establishments of state authority and other institutions specified by the Constitution and laws. The right of self-government shall be

17 17 implemented through corresponding municipal councils (Paragraph 1 of Article 119 of the Constitution). The municipal councils, as self-government institutions, are representative institutions, the members of which are elected by the residents of an administrative unit. Municipal councils are institutions through which the right of self-government of corresponding communities is implemented, while members of a municipal council are representatives of a corresponding territorial community. They have the mandate of this territorial community Paragraph 1 of Article 5 of the Constitution provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute state power Under Paragraph 1 of Article 55 of the Constitution, the Seimas shall consist of representatives of the Nation members of the Seimas. The constitutional status of a member of the Seimas, a representative of the Nation, means that a member of the Seimas is not a representative of any territorial community, a community or group of the citizens, a political party or some other organisation; he represents the whole Nation. The status of a member of the Seimas, a representative of the Nation, arises out of the provisions of the Constitution that the State of Lithuania shall be an independent democratic republic (Article 1), that the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives (Article 4), etc. The essential element of the status of a Seimas member, as a representative of the Nation, is a free mandate. While interpreting Paragraph 4 of Article 59 of the Constitution, providing that in office, members of the Seimas shall follow the Constitution of the Republic of Lithuania, the interests of the state, as well as their own consciences, and may not be bound by any mandates, the Constitutional Court in its rulings of 26 November 1993 and 25 January 2001 stated that the Constitution consolidates a free mandate of a member of the Seimas and does not recognise an imperative mandate. The essence of the a mandate is that a representative of the Nation is free to implement the rights and duties vested in him without restricting this freedom by mandates of the electorate, political requirements of parties or organisations which have promoted him. A free mandate also means that the voters have no right to recall a member of the Seimas. A pre-term recall of a member of the Seimas would constitute one of the elements of an imperative mandate. The Constitution prohibits an imperative mandate. Democratic states do not recognise the imperative mandate of a parliament member, thus, the possibility of a pre-term recall of a parliament member from his office does not exist, either. It is also noteworthy that the Constitution consolidates the immunity of a Seimas member in order that members of the Seimas as representatives of the Nation might discharge their duties without any hindrance. Article 62 of the Constitution provides that the person of a member of the