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On the elections and powers of municipal mayors

 

Case no 13/2019

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

RULING

On the compliance of the provisions of the Republic of Lithuania’s Law on Local Self-Government and the Republic of Lithuania’s Law on Elections to Municipal Councils relating to the elections and powers of municipal mayors with the Constitution of the Republic of Lithuania

19 April 2021, no KT59-N5/2021
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, Giedrė Lastauskienė, Algis Norkūnas, Daiva Petrylaitė, 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 Court’s hearing on 17 March 2021, under written procedure considered the constitutional justice case (no 13/2019) following the petition (no 1B-18/2019) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Article 119 of the Constitution of the Republic of Lithuania is violated by Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on Local Self-Government, insofar as this item provides that the municipal council is headed by the member of the municipal council directly elected in a single-member constituency, i.e. the municipal mayor, and that the mayor is the head of the municipality who exercises the powers laid down in this and other laws; Paragraph 2 (wording of 26 June 2014) of Article 5 of the same law, insofar as this paragraph, according to the petitioner, provides for three autonomous municipal institutions (the municipal council, the mayor, and the municipal executive institution performing public administrative functions in accordance with the procedure laid down in laws); Paragraph 1 (wording of 26 June 2014) of Article 19 of the same law, insofar as it provides that the mayor is elected directly for the duration of the term of powers of the municipal council; and Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 of the same law, insofar as the powers conferred on the mayor under this paragraph extend beyond the scope of the competence of the municipal representative institution.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The petition of the group of members of the Seimas, the petitioner, is based on the following arguments.

1.1. According to the petitioner, Article 119 of the Constitution lays down a single-level system of self-government between two institutions, in which the representative institution is a municipal council and the executive institution is not directly identified. Under Paragraph 3 of Article 119 of the Constitution, the procedure for the organisation and activities of self-government institutions is established by law.

In the opinion of the petitioner, when analysing Article 119 of the Constitution in a systematic manner, the conclusion should be drawn that the right of self-government is implemented only through municipal councils. The Constitution does not distinguish any single-person entity, which could be incorporated into the composition of the representative institution. The Constitution specifies the name of the representative institution (the municipal council) and its exceptional status and competence over the executive bodies accountable to it. The Constitution does not differentiate between the members of municipal council; on the contrary – the legal regulation consolidated therein applies equally to all members of municipal councils.

The petitioner substantiates its doubts by invoking the provisions of the official constitutional doctrine set out in the Constitutional Court’s ruling of 24 December 2002 that municipal councils, when implementing the right of self-government guaranteed by the Constitution, may also form other municipal institutions that would have powers of authority, as well as other municipal establishments; municipal councils, executive bodies that are accountable to them, and other institutions established by municipal councils should be considered “municipal institutions” as well. Taking into account these provisions of the official constitutional doctrine formulated by the Constitutional Court, according to the petitioner, the conclusion should be drawn that only municipal councils may form other municipal institutions. The petitioner, therefore, has doubts as to whether, in the absence of amendments to the Constitution, another relatively autonomous institution (directly elected mayor) may emerge in the system of self-government, without the municipal council being involved in its formation (election).

1.2. According to the petitioner, when defining the municipal representative institution (municipal council) in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the legislature consolidates different methods of electing representatives of the same institution: one of the members of the council, i.e. the mayor– is elected directly in a single-member constituency, while the other members of the council are elected according to the proportional electoral system in multi-member constituencies. Such a different method of electing the mayor and other members of the municipal council and the accountability to the residents determine, according to the petitioner, the exceptional status of the mayor in the municipal council, which is incompatible with Article 119 of the Constitution. It is clear from the petition that the petitioner also has doubts concerning the compliance of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government, insofar as it establishes that the mayor is directly elected for the term of the powers of a municipal council, with Article 119 of the Constitution.

1.3. The petitioner also notes that the special position of the directly elected mayor, which distinguishes him or her from other members of the municipal council, is also reflected by his or her competence established in Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 of the Law on Local Self-Government.

The petitioner draws attention to the fact that, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the directly elected mayor is the member of the municipal representative institution. However, given the nature and essence of the powers of the municipal mayor laid down in Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 of the Law on Local Self-Government, it also has the features of an executive institution, since the powers of the municipal council, which, under the previously existing legal regulation, could be assigned to an executive municipal institution, are granted to be implemented unilaterally by the mayor as a member of the representative body. The petitioner, therefore, has doubts as to whether, under Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 of the Law on Local Self-Government, the mayor, insofar as the powers conferred on him or her extend beyond the scope of the competence of the municipal representative institution, is equated with the separate single-person municipal institution, which has the features of the executive institution, i.e. whether such a legal regulation complies with the system of local self-government institutions, which is laid down in Article 119 of the Constitution.

Due to the same reasons, the petitioner also impugns the compliance of Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government with Article 119 of the Constitution, insofar as, under this paragraph, the municipal mayor is equated with autonomous municipal institutions, which performs public administration functions.

II

The arguments of the representatives of the party concerned

2. In the course of preparing the case for the hearing of the Constitutional Court, written explanations were received from the senior advisers at the Public Law Unit of the Legal Department of the Office of the Seimas, Ona Buišienė and Pranas Žukauskas, acting as the representatives of the Seimas, the party concerned; in the explanations, it is maintain that the impugned legal regulation is not in conflict with the Constitution. The position of the representatives of the Seimas, the party concerned, is substantiated by the following arguments.

2.1. According to the party concerned, the main feature of the status of the mayor is that he or she is the member of the municipal council. In the event of the loss of the mandate of the member of the municipal council, the powers of the mayor shall be terminated and new elections of the mayor must be held. Thus, as a member of a municipal council, the mayor cannot be separated from the political representative institution – the municipal council, which implements the right of self-government and is headed by him or her (the mayor).

2.2. The particularities of the legal status of the mayor, as the head of the municipal council and municipality, is determined by the nature of the position held and the powers possessed. The position of the mayor differs from the positions of other members of the municipal council, including the positions held by the heads (deputies) of the structural units set up by the municipal council. However, the position of the mayor is not in itself an indication of a separate independent institution. In the opinion of the representatives of the party concerned, the status of the mayor, as an independent municipal institution, is also not consolidated in the provision of Paragraph 2 of Article 5 of the Law on Local Self-Government. The purpose of this norm is to specify the bodies performing public administrative functions and not to define the system of municipal institutions.

2.3. According to the representatives of the party concerned, the impugned Paragraph 2 of Article 20 of the Law on Local Self-government consolidates different powers of the mayor. Some powers of the mayor (the head of the municipal council) are linked to the organisation of work of the municipal council, while others – to the representation of the municipality; the mayor is also given the powers to define the areas of activity of his or her deputy (deputies), to submit to the municipal council a proposal for the establishment of a board panel of the municipal council; some other powers of the mayor are related to the appointment of the persons referred to in Paragraph 2 of this article to duties, etc. In the opinion of the representatives of the party concerned, there is no ground for assessing the powers of the mayor consolidated in Paragraph 2 of Article 20 of the Law on Local Self-Government as not in line in themselves with the provisions of Article 119 of the Constitution.

2.4. The representatives of the party concerned specify that, when opting the system of elections of municipal councils, the Seimas followed the official constitutional doctrine formulated in the Constitutional Court’s ruling of 9 February 2007 and coordinated the elements of the proportional electoral system (election of the members of the municipal council in a multi-member constituency) with the element of the majoritarian electoral system (the elections of one member of the municipal council – the mayor in a single-member constituency). Since the mayor is elected not as an autonomous institution but as a member of the municipal council holding the position of the mayor, there is no ground for stating that the impugned provisions of the Law on Local Self-Government, which consolidate an element of the majoritarian system of elections to municipal councils, are in conflict with Article 119 of the Constitution.

III

The material received in the case

3. In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Roma Žakaitienė, Director of the Association of Local Authorities in Lithuania, and Assoc. Prof. Dr. Haroldas Šinkūnas, Head of the Public Law Department of the Faculty of Law of Vilnius University.

3.1. In the written opinion of Roma Žakaitienė, Director of the Association of Local Authorities in Lithuania, it is noted that the arguments specified by the petitioner do not prove the conflict of the impugned provisions of the Law on Local Self-Government with Article 119 of the Constitution.

3.1.1. According to Roma Žakaitienė, the Constitution provides that the members of municipal councils are elected as provided for by law on the basis of universal, equal, and direct suffrage by secret ballot. The Law on Elections to Municipal Councils establishes that, under the proportional electoral system, voters elect in a municipality (a multi-member constituency) members of the municipal council (except the member of the municipal council – the mayor) of that municipality, and, under the absolute majority vote system, a single-member constituency elects the member of the municipal council of that municipality - the mayor. Item 1 of Paragraph 3 of Article 3 of the Law on Local Self-Government provides that a member of the municipal council – the mayor – heads the municipal council. Therefore, according to Roma Žakaitienė, the mayor is not an autonomous institution, he or she is one of the members of the municipal council.

3.1.2. In the opinion of Roma Žakaitienė, independently of the method of electing the mayor, he or she heads the municipal council and acquires the relevant rights and obligations in this regard. In the performance of the duties of the chairperson of the municipal council, the functions of the mayor have not changed and are analogous to the functions established for the mayor, who is elected by the members of the municipal council. In addition, both the Law on Local Self-Government of the former wording and the Law on Local Self-Government of the current wording regulate the powers of public administration of the mayor and the means of their implementation in an analogous manner.

3.1.3. Roma Žakaitienė notes that the fact that part of the tasks of simple competence has been delegated to the head of the municipal council, the mayor, does not mean that he or she has acquired the features of the executive body.

3.2. In his written opinion, Assoc. Prof. Dr. Haroldas Šinkūnas, Head of the Public Law Department of the Faculty of Law of Vilnius University, states that the legal regulation impugned by the petitioner is not in conflict with the Constitution.

According to Haroldas Šinkūnas, under Article 119 of the Constitution, it is not required that all members of the municipal council would be elected in one constituency in accordance with the same procedure for the nomination of or voting for candidates. In addition, Article 119 (in particular, Paragraph 2 thereof) of the Constitution does not preclude a legislature with an appropriate discretion, from naming the member of the municipal council, who organises the work of the council and chairs its meetings, as well as exercises related powers, a mayor, burgomaster, etc. Therefore, according to Assoc. Prof. Dr. Haroldas Šinkūnas, the fact that direct elections of municipal mayors are consolidated in laws and implemented does not in itself mean that Article 119 of the Constitution must first be amended (by, expressis verbis, specifying therein direct elections of mayors), if the mayor of the municipality remains a member of the municipal council and not becomes a completely new or disproportionately autonomous representative institution which would be incompatible with the status of a municipal council enshrined in Paragraph 1 of Article 119 of the Constitution, or an institution for the enforcement of decisions of a municipal council, which is provided for in the abstract manner in Paragraph 4 of Article 119 of the Constitution as separate from the council.

The Constitutional Court

holds that:

I

The scope of investigation

4. The petition makes it clear that the petitioner requests an investigation into the compliance of the following provisions of the Law on Local Self-Government linked to the elections and powers of the member of the municipal council – municipal mayor – with Article 119 of the Constitution:

Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3, insofar as this item provides that the municipal council is headed by the member of the municipal council directly elected in a single-member constituency, i.e. the municipal mayor, and that the mayor is the head of the municipality who exercises the powers laid down in this and other laws;

Paragraph 2 (wording of 26 June 2014) of Article 5, insofar as, under this paragraph, the municipal mayor is equated with autonomous municipal institution, which performs public administration functions;

Paragraph 1 (wording of 26 June 2014) of Article 19, insofar as it establishes that the mayor is directly elected for the term of the powers of a municipal council;

Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20, insofar as, according to the powers established therein, the mayor is equated with the separate single-person municipal institution, which has the features of the executive institution.

5. The petitioner requests an investigation into the constitutionality of the legal regulation governing the powers of the mayor, which is consolidated in Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 “Powers of the mayor, deputy mayor” of the Law on Local Self-Government.

5.1. The petition makes it clear that, when applying to the Constitutional Court, the petitioner impugned the constitutionality of Paragraph 2 (wording of 26 June 2014 with the amendments made before 15 November 2018) of Article 20 of the Law on Local Self-Government.

It should be noted that, after having accepted the petition at the Constitutional Court for consideration, Paragraph 2 (wording of 26 June 2014 with the amendments made before 15 November 2018) of Article 20 of the Law on Local Self-Government has been amended on more than one occasion:

Item 3 of this paragraph was amended by the Law Amending Articles 5, 6, 16 and 20 of the Republic of Lithuania’s Law on Local Self-Government (No. I-533), which was adopted on 11 June 2020;

Items 16 and 17 of this paragraph were amended by the Law Amending Articles 16 and 20 of the Republic of Lithuania’s Law on Local Self-Government (No. I-533), which was adopted on 30 June 2020;

Items 13 and 20 of this paragraph were declared as no longer valid and Item 22 of this paragraph was supplemented by the Law Amending Articles 4, 7, 12, 13, 14, 15, 16, 19, 20, 24, 26, 27, 29, 32, 321, 33, 351, 53 and Chapter 9 of the Republic of Lithuania’s Law on Local Self-Government (No. I-533) and Supplementing the Law with Article 151.

5.2. Paragraph 4 (wording of 11 July 1996) of Article 69 of the Law on the Constitutional Court prescribes that the annulment of an impugned legal act constitutes the grounds for adopting a decision to dismiss the instituted legal proceedings.

The Constitutional Court has held that the wording “shall be grounds […] to dismiss the instituted legal proceedings” of Paragraph 4 (wording of 11 July 1996) of Article 69 of the Law on the Constitutional Court should be interpreted as establishing that, in cases where not courts and not the persons specified in Paragraph 4 (wording of 21 March 2019) of Article 106 of the Constitution but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and where an impugned legal act (part thereof) is no longer valid – it has been declared as no longer valid (it was repealed or amended) or its validity has expired, the Constitutional Court, when taking account of the circumstances of the considered case, has the powers to dismiss the instituted legal proceedings, and it should not be interpreted as establishing that, in every case, when the impugned legal act (part thereof) is repealed, the instituted legal proceedings must be dismissed (rulings of 25 November 2019, 6 February 2020, and 3 November 2020).

5.3. It has been mentioned that the group of members of the Seimas, the petitioner, applied to the Constitutional Court requesting an investigation into the compliance of the legal regulation consolidated in Paragraph 2 (wording of 26 June 2014 with the amendments made before 15 November 2018) of Article 20 of the Law on Local Self-Government with the Constitution. As mentioned before, the petitioner has doubts as to whether, under this legal regulation, the mayor, insofar as the powers conferred on him or her extend beyond the scope of the competence of the municipal representative institution, is equated with the separate single-person municipal institution, which has the features of the executive institution.

The comparison of the legal regulation, which was established in Paragraph 2 (wording of 26 June 2014 with the amendments made before 15 November 2018) of Article 20 of the Law on Local Self-Government and which was effective at the time of application to the Constitutional Court, and the legal regulation established in Paragraph 2 (as amended on 10 November 2020) of this article made it clear that, when amending certain items of this paragraph, the overall legal regulation established therein was not amended substantially. Therefore, the legal regulation established in Paragraph 2 (as amended on 26 June 2014) of Article 20 of the Law on Local Self-Government has not changed in substance from the aspect impugned in this constitutional justice case.

5.4. In view of the above, it should be held that there are no grounds for the Constitutional Court to adopt a decision to dismiss this part of the constitutional justice case.

Thus, in this constitutional justice case, the Constitutional Court will investigate whether, among others, Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government is, to the extent specified by the petitioner, in conflict with the Constitution.

6. In the light of the foregoing, in this constitutional justice case, the Constitutional Court will investigate whether the following provisions of the Law on Local Self-Government are in conflict with Article 119 of the Constitution:

Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3, insofar as this item provides that the municipal council is headed by the member of the municipal council directly elected in a single-member constituency, i.e. the municipal mayor, and that the mayor is the head of the municipality who exercises the powers laid down in this and other laws;

Paragraph 2 (wording of 26 June 2014) of Article 5, insofar as, under this paragraph, according to the petitioner, the municipal mayor is equated with autonomous municipal institutions, which performs public administration functions;

Paragraph 1 (wording of 26 June 2014) of Article 19, insofar as it establishes that the mayor is directly elected for the term of the powers of a municipal council;

Paragraph 2 (as amended on 10 November 2020) of Article 20, insofar as, according to the powers established therein, the mayor, according to the petitioner, is equated with the separate single-person municipal institution, which has the features of the executive institution.

II

The impugned and related legal regulation

7. As mentioned before, in this constitutional justice case, the Constitutional Court examines the compliance of the provisions of the Law on Local Self-Government linked to elections of municipal mayors and their powers with the Constitution.

8. On 15 September 2008, the Seimas adopted the Law Amending the Republic of Lithuania’s Law on Self-Government, which came into force (with certain exceptions) on 1 October 2008; by this law, the Seimas amended the Law on Local Self-Government (wording of 7 July 1994, as subsequently amended and supplemented) and set this law out in a new wording.

The purpose of the Law on Local Self-Government (wording of 15 September 2008) – to promote and develop local self-government as the foundations of the development of a democratic state (Article 1); the purpose – to lay down the procedure of formation and activities of municipal institutions when implementing the provisions of the Constitution and the European Charter of Local Self-Government, define the principles of local self-government, municipal institutions and their competence, functions, the status of the member of the municipal council, the grounds of economic and financial activities of municipalities (Paragraph 1 of Article 2).

9. The Law on Local Self-Government (wording of 15 September 2008) has been amended and/or supplemented on more than one occasion, inter alia, by the Law Amending Articles 3, 5, 10, 11, 13, 14, 16, 17, 19, 20, 22, 25, 27, 29, 40, 42, 45, and 46 of the Republic of Lithuania’s Law on Local Self-Government (No. I-533) and Supplementing the Law with Article 251, which was adopted by the Seimas on 26 June 2014 and which established the impugned legal regulation linked to the elections and powers of the mayor.

It should be noted that it is clear from the traveaux préparataires of the impugned legal regulation that it is aimed at creating the legal preconditions for the direct election of municipal mayors with greater powers than the powers of the municipal mayors elected from among the members of the council following the decision of the municipal councils (the explanatory note to the draft Law Amending and Supplementing Articles 3, 5, 10, 11, 13, 14, 16, 17, 19, 20, 22, 27, 29, 40, 42, 45, and 46 of the Law on Local Self-Government (No. X-1722)).

10. Paragraph 3 of Article 3 “Definitions” of the Law on Local Self-Government, the constitutionality of Item 1 whereof is impugned by the petitioner, prescribes the following:

Municipal institutions means the following institutions responsible for the implementation of the right to self-government in the interests of the municipal community:

(1) a representative institution of the municipality – the municipal council which possesses the rights and duties of local government and public administration and which is headed by the member of the municipal council – mayor (hereinafter referred to as the mayor) who is directly elected in a single-member constituency in accordance with the procedure laid down by the Law of the Republic of Lithuania on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils). The mayor shall be the head of the municipality who exercise the powers provided for by this Law and other laws;

(2) an executive institution of the municipality (executive institutions) – the director of the municipal administration, deputy director(s) of the municipal administration (if this/these position(s) is/are set up and if the powers of an executive institution are delegated to this/these position(s)), who possess the rights and duties of public administration.”

Therefore, Paragraph 3 (as amended on 26 June 2014) of Article 3 of the Law on Local Self-Government consolidates the notion of municipal institutions: municipal institutions means the all the institutions responsible for the implementation of the right to self-government in the interests of the municipal community. This paragraph also establishes two types of municipal institutions: the municipal representative institution and the municipal executive institution (executive institutions).

10.1. The legal regulation established in Paragraph 3 (as amended on 26 June 2014) of Article 3 of the Law on Local Self-Government should be interpreted in conjunction with Paragraph 1 (wording of 26 June 2014) of this article, which consolidates the notion of the municipality: “Municipality means an administrative unit of the territory of the State, defined by the law, the community of which has the right to self-government guaranteed by the Constitution and implemented through a municipal council elected by the permanent residents of that administrative unit of the territory of the State, where such council establishes executive and other institutions and establishments accountable to it with the aim of implementing directly laws and decisions of the Government of the Republic of Lithuania (hereinafter referred to as the Government) and the municipal council. A municipality shall be a public legal person.”

Thus, according to Paragraph 1 (wording of 26 June 2014) of Article 3 of the Law on Local Self-Government, the municipality is defined as an administrative unit of the territory of the State, defined by the law, the community of which has the right to self-government guaranteed by the Constitution, for the implementation of which the municipality has been granted with the status of a public legal person; the municipal community, consisting of permanent residents of the administrative unit of the territory of the state, implements the right to self-government guaranteed by the Constitution through a municipal council elected by the community itself, which establishes executive and other institutions and establishments accountable to it with the aim of implementing directly laws and decisions of the Government and the municipal council.

10.1.1. When interpreting Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government in conjunction with Paragraph 1 (wording of 26 June 2014) of this article, it should be noted that, under the legal regulation established therein, the only municipal, i.e. municipal community’s, representative institution is the municipal council, the distinctive features of which are the following:

formation by elections: the municipal council is elected by the municipal community – residents of the administrative unit of the territory of the state as established by the respective law;

the implementation of the powers of two kinds – those of local government and public administration.

10.1.2. When interpreting Item 2 of Paragraph 3 (as amended on 26 June 2014) of Article 3 of the Law on Local Self-Government in conjunction with Paragraph 1 (wording of 26 June 2014) of this article, it should be noted that, under the legal regulation established therein, the executive institutions of the municipality are the director of the municipal administration and deputy directors, the distinctive features of which are the following:

appointment to duties by decision of the municipal council as the representative institution of the municipal community;

the implementation of the powers of public administration, among others, the direct implementation of the decisions of the Government and municipality.

It should be noted that, under Item 2 of Paragraph 3 (amended of 26 June 2014) of Article 3 of the Law on Local Self-Government, the local government powers are not granted to the executive institutions of the municipality.

10.2. From the aspect relevant to this constitutional justice case, it should be noted that the impugned Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government specifies the mayor who, according to Item 2 of this paragraph and Paragraph 1 of this article, is neither the municipal representative institution, nor the municipal executive institution. However, the legal regulation laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government shows the following elements of the legal status of the mayor:

the mayor is one of the members of the municipal council;

the mayor is elected directly in a single-member constituency;

the mayor is assigned the functions of the head of the municipal council;

the mayor is the head of the municipality who exercises the powers provided for by this Law and other laws.

10.2.1. The provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, which consolidate the elements of the legal status of the mayor, should be interpreted in the context of Paragraphs 3 and 4 of Article 1 “Grounds for the election of members of municipal councils of the Republic of Lithuania” of the Republic of Lithuania’s Law on Elections to Municipal Councils. They state the following:

3. One municipality shall form one multi-member constituency. Under the proportional electoral system, voters shall elect in a municipality (a multi-member constituency) the members of the municipal council (except the member of the municipal council – the mayor) of that municipality.

4. Under the majority vote system, a single-member constituency, composed of the whole municipality, shall elect the member of the municipal council of that municipality – the mayor.”

10.2.1.1. It should be noted that, under the legal regulation prescribed in Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014), the municipality forms one multi-member constituency in which the members of the municipal council, except for the mayor, are elected; the municipality also forms one single-member constituency, in which the mayor is elected. As mentioned before, according to Paragraph 1 (wording of 26 June 2014) of Article 3 of the Law on Local Self-Government, the municipality is defined as an administrative unit of the territory of the state, defined by the law, the community of which has the right to self-government guaranteed by the Constitution; the municipal community consisting of permanent residents of that administrative unit of the territory of the state, implements the right to self-government guaranteed by the Constitution through a municipal council elected by the community itself.

Thus, when interpreting the legal regulation established in Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014) in conjunction with the legal regulation established in Paragraph 1 (wording of 26 June 2014) of Article 3 of the Law on Local Self-Government, it should be noted that, under this legal regulation, the community of the municipality, as an administrative territorial unit of the state established by law, elects the members of the municipality, which implements the right of self-government of the community, in two following ways:

members of the municipal council (except the mayor) of the municipality shall be elected under the proportional electoral system in one multi-member constituency, which covers the whole territory of the municipality, therefore, all the municipal community;

the mayor is elected under the absolute majority vote system, in a single-member constituency, which covers the whole territory of the municipality, therefore, all the municipal community, i.e. the mayor is elected in a single-member constituency of the same size as the multi-member constituency, in which other members of the municipal council are elected.

10.2.1.2. In view of the above, it should be noted that the provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government consolidating the elements of the legal status of the mayor should be interpreted as establishing the exclusive method of electing the mayor as one of the members of the municipal council: the mayor is the only member of the municipal council, who is elected under the absolute majority vote system by the municipal community of the same size, which, according to the proportional electoral system, elects all other members of the municipal council. From this aspect, it should also be noted that the provision of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government that the mayor is elected directly means that he or she is elected to this position, inter alia, including the implementation of the functions of the head of the municipal council, independently of the will of the members of the municipal council, i.e. that the mayor, inter alia, as the head of the municipal council, is directly elected by all the community of the municipal council and not the members of the municipal council.

10.2.2. In this context, it should be noted that also the provisions “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 “The mayor and deputy mayor” of Article 19 of the Law on Local Self-Government, which is also impugned by the petitioner, is linked with the impugned legal regulation established in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government.

In view of the content of the provision of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government that the mayor is elected directly, the provision “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government should also be interpreted as consolidating the exclusive method of electing the mayor as one of the members of the municipal council, i.e. that the mayor is directly elected by all the municipal community and not by the members of the municipal council.

10.2.3. In interpreting the elements of the legal status of the mayor, which are consolidated in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, it should also be noted that, under the legal regulation laid down in this item, in addition to his or her duties as the head of the municipal council, the mayor, who is the member of the municipal council, is also granted additional powers of the head of the municipality, as laid down by this law and by other laws. As mentioned before, according to Paragraph 1 (wording of 26 June 2014) of Article 3 of the Law on Local Self-Government, the municipality is defined as an administrative unit of the territory of the State, defined by the law, the community of which has the right to self-government guaranteed by the Constitution, for the implementation of which the municipality has been granted with the status of a public legal person.

In view of the above, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the mayor is, inter alia, the head of the municipality as a community of an administrative territorial unit of the state, inter alia, the community thereof, which implements the right of self-government guaranteed by the Constitution, whose powers are established by this law and other laws.

10.3. Summarising, from the point of view relevant to this constitutional justice case, the legal regulation laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government and the related legal regulation, it should be noted that, under this legal regulation, the mayor is not expressis verbis specified as a municipal institution but he or she is the member of the municipal representative institution, the municipal council. It should also be noted that this legal regulation consolidates the exceptional legal status of the mayor, as a member of the municipal council, which has the following features of a separate municipal institution:

the exclusive method of electing the mayor to duties: the mayor is directly elected by all the municipal community and not by the members of the municipal council;

specific powers (which are not linked to the duties at the municipal council): the mayor, who ex officio is the head of the municipal council, is also granted the powers of the head of the municipality as a community of an administrative territorial unit of the state, inter alia, the community thereof, which implements the right of self-government guaranteed by the Constitution; these powers are established by this law and other laws.

11. In this context, it should be noted that the exclusive method of electing the mayor laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government is related to the requirements for the mayor and the grounds for the loss of his or her powers, which are established in this law and the Law on Elections to Municipal Councils.

11.1. Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government, inter alia, prescribed: “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors.”

In this context, it should be noted that Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government also established the following: “The municipal council shall, for the duration of its powers, appoint from among the members of the council one or several deputy mayors”. As it was mentioned, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the mayor is also the member of the municipal council.

Thus, the provision “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government consolidates the requirement for the members of the municipal council – the mayor and deputy mayors – to be the citizens of the Republic of Lithuania.

11.1.1. In this context, it should be noted that Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils, inter alia, establishes the following: “Any permanent resident of a particular municipality, who is at least 18 years of age on polling day, may be elected as member of the council of that municipality; a citizen of the Republic of Lithuania who may be elected member of a particular municipality may be elected member of the council and mayor of that municipality.”

Therefore, Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils lays down an additional requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is not established for the persons who may be elected as other members of the municipal council. It should be noted that this paragraph, as also other provisions of the Law on Elections to Municipal Councils (wording of 26 June 2014) does not establish the requirements for the elected members of the municipal council who are appointed to the positions in the municipal council, inter alia, the position of a deputy mayor, by the municipal council.

11.1.2. In view of the above, it should be noted that the provision “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government also establishes an additional requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, but it does not establish this additional requirement for the persons who may be elected as other members of the municipal council.

In should also be noted that the provision “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government also establishes an additional requirement of citizenship of the Republic of Lithuania for the elected members of the municipal council who may be appointed by the municipal council to the position of a deputy mayor.

11.2. The legal regulation establishing the grounds for the loss of the powers of mayors and deputy mayors, is linked to the provision “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government.

11.2.1. Paragraph 7 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government prescribes: “The powers of the mayor shall be terminated and his or her mandate of a member of the municipal council shall be revoked if he or she loses the citizenship of the Republic of Lithuania or a mandate of the member of the municipal council.”

Therefore, this legal regulation establishes the special basis for the loss of the powers of the member of the municipal council, the mayor – the loss of citizenship of the Republic of Lithuania, which is not established for the powers of other members of the municipal council. It should be noted that such a special basis for the loss of the powers of the member of the municipal council, the mayor is determined by the said additional requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is laid down in Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government and Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils.

11.2.2. Paragraph 5 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government prescribes: “The powers of the deputy mayor shall be terminated if he or she loses the citizenship of the Republic of Lithuania or a mandate of the member of the municipal council.”

Therefore, this legal regulation established the special basis for the loss of the powers of the deputy mayor – the loss of citizenship of the Republic of Lithuania, which was not established for other positions in the municipal council, to which the municipal council appoints the members of the municipal council. It should be noted that such a special basis for the loss of the powers of the deputy mayor is determined by the said additional requirement of citizenship of the Republic of Lithuania for the elected members of the municipal council who may be appointed by the municipal council to the position of a deputy mayor, which is laid down in Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government.

12. In this context, it should be noted that the specific powers of the mayor, which are established in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, are concretised, inter alia, in Paragraph 2 (wording of 26 June 2014) of Article 5, as well as in Paragraph 2 (as amended on 10 November 2020) of Article 5 of the Law on Local Self-Government, which is investigated in this constitutional justice case.

12.1. Paragraph 2 (wording of 26 June 2014) of Article 5 “Functions of municipalities” of the Law on Local Self-Government prescribes:

Functions of municipalities shall, in regard to its business activities, be divided into local government, public administration and public service provision functions. Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor, when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of a municipality, other heads of municipal establishments and services, and civil servants, who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council. Public services shall be provided by service providers established by municipalities or other legal and natural persons under contracts concluded with municipalities, who are chosen by means of an open tender.”

Thus, Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government establishes that, in implementing the powers established for them by law, both the municipal council and the mayor implement the functions of municipalities, which, in regard to their business activities, are described as local government functions and public administration functions. It should be noted that the implementation of the functions of local government of municipalities implies the implementation of the government powers established by laws in the territory of the municipality concerned as an administrative territorial unit of the state established by law.

12.1.1. In this context, it should be noted that, under Paragraph 18 of this Article 2 of the Republic of Lithuania’s Law on Public Administration (wording of 28 May 2020), public administration is defined as activities of entities of public administration regulated by legal acts, which are intended for the implementation of legal acts: administrative regulation, adoption of administrative decisions, control of the implementation of laws and administrative decisions, provision of administrative services established, and administration of the provision of public services. Therefore, under this regulation, public administration includes, inter alia, executive activities – inter alia, the implementation of laws, government resolutions, and decisions of the municipal council.

It should also be noted that, under Paragraph 20 of Article 2 of the Law on Public Administration (wording of 28 May 2020), an entity of public administration, inter alia, means a public legal person, a collegial or single-person institution which does not have the status of a legal person; under Item 1(a) of Paragraph 1 of Article 5 of this law, the powers of public administration, inter alia, for collegial or single-person municipal institution, may be granted, inter alia, by means of laws.

Therefore, when interpreting the legal regulation established in Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government in the context of Paragraphs 18 and 20 of Article 2 and Item 1(a) of Paragraph 1 of Article 5 of the Law on Public Administration (wording of 28 May 2020), it should be noted that, under this legal regulation, the municipal council and the mayor are separate entities of public administration – collegial or single-person municipal institutions accordingly, which have the powers of public administration conferred on them by law, inter alia, to perform executive activities.

12.1.2. Summarising, from the point of view relevant to this constitutional justice case, the legal regulation laid down in Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, it should be noted that, under this legal regulation, the mayor is a single-person municipal institution separate from the municipal council who has the local government and public administration powers laid down for him or her in laws, inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal councils.

12.2. Paragraph 2 (as amended on 10 November 2020) of Article 5 of the Law on Local Self-Government, Items 13 and 20 whereof, as mentioned before, were declared as no longer valid, establishes the following:

The mayor:

(1) shall plan activities of the municipal council, set and draw up agendas of sittings of the municipal council and present drafts of decisions of the municipal council, convene municipal council sittings and preside over them, co-ordinate activities of municipal council’s committees and commissions, sign municipal council’s decisions and minutes of the sittings over which he or she has presided;

(2) in accordance with the procedure laid down by the rules of conduct, shall himself or herself represent or authorise other persons to represent the municipality in court, in co-operation with other municipalities, state institutions, institutions of foreign states, as well as with other natural and legal persons;

(3) shall represent a municipality in the Regional development council’s board panel;

(4) shall, in accordance with the procedure laid down by the rules of conduct, nominate to the municipal council, coordinate with it and submit to it the candidates for deputy mayor (deputy mayors), director of the municipal administration, deputy director of the municipal administration (on the recommendation of the director of the municipal administration), the deputy chair of the Control Committee of the municipal council, the chair of the Control Committee in the cases provided for in this Law and chairs of the commissions of the municipal council set put by this Law; may, in accordance with procedure laid down by the rules of conduct, propose to dismiss them and propose to impose penalties on the director of the municipal administration;

(5) shall define fields of activities of the deputy mayor (deputy mayors);

(6) shall submit to the municipal council a proposal to set up a municipal council’s board panel;

(7) shall submit to the municipal council proposals on the setting-up of a secretariat of the municipal council or on determining of the number of positions therein or determining of the number of positions of civil servants of political (personal) confidence of the mayor (if a secretariat is not established);

(8) shall guide the work of the secretariat (if such is formed), approve regulations of the secretariat, employ and dismiss employees of the secretariat, civil servants of political (personal) confidence of the mayor in accordance with the procedure laid down by the Law on Civil Service and the Labour Code;

(9) shall nominate candidates for chairs and deputy chairs of the committees and submit the candidatures to the committees, except the Control Committee;

(10) may, in the manner prescribed by the rules of conduct, propose to the municipal council to instruct the municipal controller (the municipal control and audit service) to carry out a financial and performance audit, not provided for in an action plan, of the municipal administration, administrating entities of the municipality or undertakings controlled by the municipality, accept from the municipal controller (the municipal control and audit service) audit reports and conclusions on the results of the carried-out financial and performance audit, when necessary, shall organise consideration of such reports and conclusions at sittings of the municipal council’s committees and the municipal council;

(11) shall control and supervise activities of heads of municipal institutions, establishments and undertakings of public administration, how they implement laws, decisions of the Government and the municipal council;

(12) upon having received the consent of the municipal council, shall conclude agreements relating to the co-operation of a municipality with state institutions, other municipalities or institutions of foreign countries;

(14) shall, in accordance with the procedure laid down by the municipal council, use for representation purposes the resources of the mayor’s representation fund and account for the said resources.

(15) shall, on the recommendation of the director of the municipal administration, approve the division (grouping) of residential localities or their parts into elderships;

(16) shall appoint and dismiss heads of budgetary establishments, except wards – budgetary establishments; perform other functions relating to the employment relationship of the heads of all budgetary establishments himself or herself in accordance with the procedure laid down by the Labour Code and other legal acts; or the said functions shall be performed by a member of the municipal council who temporarily holds the office of the mayor in the cases laid down by this Law;

(17) shall appoint and dismiss heads of public establishments (whose owner the municipality is), except educational establishments; perform other functions relating to the employment relationship of the heads of all budgetary establishments himself or herself in accordance with the procedure laid down by the Labour Code and other legal acts; or the said functions shall be performed by the member of the municipal council who temporarily holds the office of the mayor in the cases laid down by this Law;

(18) shall restore the rights of ownership of the existing real estate, managed by the municipality, to religious communities and associations;

(19) shall, in accordance with the procedure laid down by legal acts, take decisions to issue permits to use areas intended for fishing in water bodies, approve plans for measures aimed at the use, restoration and protection of fish stock in water bodies designated for fisheries;

(21) shall provide premises to the members of the Seimas in compliance with the Statute of the Seimas of the Republic of Lithuania;

(22) shall announce a local population opinion survey;

(23) shall grant vacations to the director of the municipal administration, in the event the director of the municipal administration is absent – to his or her deputy, to the municipal controller, in the event the municipal controller is absent – to his or her deputy; shall assign the director of the municipal administration, in the event the director of the municipal administration is absent – his or her deputy, the municipal controller, in the event the municipal controller is absent – his or her deputy to business trips.”

12.2.1. Therefore, it it clear from the overall legal regulation established in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government that it consolidates the powers of the mayor of the following kinds:

the powers of the mayor, as the head of the municipal council, for example, the powers related to the planning and organisation of activities of the municipal council, recommendation of candidates for the positions in the municipal council, and the organisation of work of the secretariat of the municipal council (Items 1, 4, 6, 7, 8, 9 and 10);

local authority powers exercised by the mayor as the head of the municipal council, for example, the powers linked to the representation of the municipality, the establishment of the fields of activities of a deputy mayors, the formation, control and supervision of executive and other institutions of the municipality, the appointment of the heads of the budgetary establishments and public establishments, the division of residential localities or their parts into elderships, and the announcement of a local population opinion survey (Items 2, 3, 4, 5, 10, 11, 12, 15, 16, 17, 22, and 23);

the powers of the mayor as a public administration entity, inter alia, to carry out executive activities, for example, the powers related to the restoration of the rights of ownership of the real estate to religious communities and associations, the issuance of permits to use areas intended for fishing, the approval of plans for measures aimed at the use, restoration and protection of fish stock, and the provision of premises to the members of the Seimas (Items 18, 19, and 21).

12.2.2. As mentioned before, it is clear from the travaux préparatoires of the Law Amending Articles 3, 5, 10, 11, 13, 14, 16, 17, 19, 20, 22, 25, 27, 29, 40, 42, 45, and 46 of the Law on Local Self-Government (No. I-533) and Supplementing the Law with Article 251, which established the impugned legal regulation linked to the elections and powers of the mayor, that the purpose of this law was to create the legal preconditions for the direct election of municipal mayors with greater powers than the powers of the municipal mayors elected from among the members of the council following the decision of the municipal councils.

In this context, it should be noted that, under Items 15–19, 21, and 22 of Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, the local government and public administration powers previously falling within the exclusive and ordinary competence of the municipal council have been transferred to the mayor in relation to the division of residential localities or their parts into elderships, the appointment of the heads of the budgetary establishments and public establishments, the restoration of the rights of ownership of the real estate to religious communities and associations, the issuance of permits to use areas intended for fishing, the approval of plans for measures aimed at the use, restoration and protection of fish stock, and the provision of premises to the members of the Seimas, and the announcement of a local population opinion survey (these powers were attributed to the municipal council pursuant to Item 14 of Paragraph 2, Items 3 , 4 and 10, Item 11 (wording of 30 June 2021), Item 13 (wording of 19 June 2011), and Item 14 (wording of 8 November 2012) of Paragraph 3 of Article 16 of the Law on Local Self-Government (wording of 15 September 2008)).

12.2.3. Summarising, from the point of view relevant to this constitutional justice case, the legal regulation laid down in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, it should be noted that, under this legal regulation, the mayor is granted not only the powers of the head of the municipal council but also the powers of the mayor as an entity of local government and public administration (which are separate from the powers of the municipal council), inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal councils.

12.3. As mentioned before, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the member of the municipal council – the mayor is the head of a municipal council directly elected by all the municipal community.

In this context, it should be noted that Paragraph 9 (wording of 14 February 2019) of Article 13 “Sittings of the municipal council” of the Law on Local Self-Government, inter alia, prescribes: “Decisions of the municipal council shall be adopted by a majority vote of all members of the municipal council participating in the sitting. In the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote.“

Therefore, this legal regulation consolidated the exclusive right of a decision-making vote of the member of a municipal council – the mayor, as the head of a municipal council directly elected by all the municipal community – in making decisions of the municipal council, which is not possessed by other members of the municipal council: if the votes of the members of the municipal council attending the meeting are equally divided, the mayor’s vote shall be decisive.

III

European standards for the functioning of political representative and local self-government institutions relevant to this constitutional justice case

13. The provisions of some documents adopted by the Council of Europe and its institutions relating to the mandate of the members of political representative institutions and the formation of local self-government institutions are relevant for the constitutional justice case at issue.

13.1. As is apparent from the preamble to the European Charter of Local Self-Government adopted on 15 October 1985, which was ratified by the Seimas on 25 May 1999 (it came into force on 1 October 1999 for the Republic of Lithuania), the Member States of the Council of Europe adopted that Charter on the basis, inter alia, of the fact that the local authorities are one of the main foundations of any democratic regime, the fact that the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member States of the Council of Europe and that it is at local level that this right can be most directly exercised, and aware that the safeguarding and reinforcement of local self-government in the different European countries is an important contribution to the construction of a Europe based on the principles of democracy and the decentralisation of power.

Article 3 “Concept of local self-government” of the European Charter of Local Self-Government prescribes the following:

1. Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.

2. This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.”

13.2. In the context of the constitutional justice case at issue, some documents adopted by the Congress of Local and Regional Authorities of Europe (hereinafter referred to as the Congress) are also relevant; it is an advisory body to the Council of Europe, inter alia, on the strengthening of local and regional self-government and on the implementation of the principles of the European Charter of Local Self-Government.

13.2.1. In view of the fact that the right of local self-government must be exercised through democratically elected institutions, Recommendation No 113 (2002) of the Congress on relations between the public, the local assembly and the executive in local democracy (the institutional framework of local democracy) highlighted the fact that direct election of mayors by the people is becoming an increasingly frequent method of choosing the head of the executive in member states of the Council of Europe and this trend was generally accepted, with a separate emphasis on the different accountability of executive bodies to municipal councils, depending on the way in which executive bodies are appointed or elected. The recommendation highlights principles relevant to the institutional system of local democracy, such as direct, representative local democracy, public participation, relations between representative and executive authorities (inter alia, the responsibility of the executive and accountability to the representative authority).

13.2.2. Recommendation No 151 (2004) of the Congress on the advantages and disadvantages of a directly elected local executive in the light of the principles of the European Charter of Local Self-Government highlighted the advantages of direct election of the mayor as the executive institution, inter alia, that such elections contribute to greater legitimacy of local authority, inter alia, the executive, higher levels of identity and participatory democracy of the local community, greater responsibility of local authorities, inter alia, the executive, better level of governance and greater stability of local authorities, inter alia, the executive.

This recommendation of the Congress also identifies disadvantages of the system of direct election of the mayor as the executive institution, such as possible political deadlocks in the conflict between the mayor’s and the assembly’s (representative institution) political positions, excessive power given to the mayor, risk of populism, weakening of political parties. Also the significance of the system of checks and balances between a representative and executive political organs is highlighted in the recommendation.

13.2.3. Given that the basic principles of democratic participation in the decision-making process are enshrined in a number of legal and political documents of the Council of Europe that shape a common European standard of democracy, the Recommendation 273 (2009) “Equal access to local and regional elections” recommends that the Committee of Ministers urge the governments of member states, inter alia, to grant the right to vote and stand in local elections to all residents legally residing for at least three years on their territory, irrespective of their origin.

13.3. In the context of this constitutional justice case, mention be made of the provisions of the relevant documents of the European Commission for Democracy through Law (Venice Commission), acting as an advisory body to the Council of Europe, on constitutional matters.

13.3.1. In the Opinion “Parameters on the Relationship between the Parliamentary Majority and the Opposition in a Democracy: a checklist” (paragraphs 40–42), adopted by the Venice Commission at its 119th Plenary Session on 21-22 June 2019, inter alia, the following provisions related to the status of the members of the parliament as a political representative institution, were formulated:

all members of parliament should have the same individual rights irrespective of whether they belong to the ruling majority, to the opposition, or are independent;

some rights have implied limitations, related to the status of a member of parliament as a member of a particular group;

the principle of equality of MPs therefore is normally supplemented by a principle of proportional representation and participation by party groups in the internal bodies of Parliament;

the principle of equality does not exclude that some members of parliament having leadership positions within Parliament (the Speaker, heads of the permanent committees, rapporteurs, etc.) may have additional rights and privileges.

13.3.2. In the Opinion on the Draft Constitutional Law on changes and amendments to the Constitution of Georgia (Chapter VII - Local Self-Government) adopted by the Venice Commission at its 82nd Plenary Session on 12-13 March 2010, it was noted that, in municipalities where the mayor is directly elected, responsibility ending in dismissal procedures would be very questionable since the mayor possesses his or her own democratic mandate; such solution would cause the risks of political instability (paragraphs 22–23).

13.3.3. In the report “On electoral law and electoral administration in Europe (Synthesis study on recurrent challenges and problematic issues)”, taken into account at the 69th remote meeting of the Democratic Election Council on 7 October 2020 and the 124th remote plenary session of the Venice Commission on 8-9 October 2020, it was noted that the right to vote in local elections and to stand for local election must be granted to the persons who do not have citizenship of that state but are long-standing residents there; it would be in accordance with the provisions of the Council of Europe Convention (1992) on the Participation of Foreigners in Public Life at Local Level (Item 87).

14. The provisions of European Union law relating to local elections are relevant to this case of constitutional justice.

14.1. Under Paragraph 2 of Article 20 of the Treaty on the Functioning of the European Union (hereinafter referred to as the TFEU), citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties, among others, the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State (Item b); similarly, Paragraph 1 of Article 22 of the TFEU establishes that every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.

14.2. It should be noted that Paragraph 5 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014) and the annex “Legal Acts of the European Union Implemented by this Law” to this law specify that this law implements the Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, as last amended by the Council Directive 2006/106/EC of 20 November 2006 and Council Directive 2013/19/EU of 13 May 2013 (hereinafter referred to as the Directive).

Recital 5 of the Directive states that non-nationals must not be required to fulfil any special conditions unless, exceptionally, different treatment of nationals and non-nationals is justified by circumstances specific to the latter distinguishing them from the former.

Under Article 3 of the Directive, any person who, on the reference date is a citizen of the Union and is not a national of the Member State of residence, but in any event satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals, shall have the right to vote and to stand as a candidate in municipal elections in the Member State of residence in accordance with this Directive.

It should be noted that the exception to this general rule is established in Paragraph 3 of Article 5 of the Directive, under which, Member States may provide that only their own nationals may hold the office of elected head, deputy or member of the governing college of the executive of a basic local government unit if elected to hold office for the duration of his mandate. This provision is directly related to Recital 9 of the Directive, under which, since the duties of the leadership of basic local government units may involve taking part in the exercise of official authority and in the safeguarding of the general interest, Member States should be able to reserve these offices for their nationals.

IV

The provisions of the Constitution and the official constitutional doctrine

15. As mentioned before, in this constitutional justice case, the Constitutional Court examines the compliance of the provisions of the Law on Local Self-Government (wording of 15 September 2008) linked to elections of municipal mayors and their powers with Article 119 of the Constitution.

16. Article 119 of the Constitution prescribes:

The right to self-government shall be guaranteed to the administrative territorial units of the State, which are provided for by law. This right shall be implemented through the respective municipal councils.

The members of municipal councils shall be elected for a four-year term, as provided for by law, from among the citizens of the Republic of Lithuania and other permanent residents of the respective administrative units by the citizens of the Republic of Lithuania and other permanent residents of these administrative units on the basis of universal, equal, and direct suffrage by secret ballot.

The procedure for the organisation and activities of self-government institutions shall be established by law.

For the direct implementation of the laws of the Republic of Lithuania, as well as the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it.”

Thus, Article 119 of the Constitution enshrines the right of self-government; the said right is guaranteed to the administrative territorial units of the state, which are provided for by law, and is implemented by the territorial communities of those administrative units through the municipal councils elected by them.

16.1. When revealing the content of the constitutional right of self-government, the Constitutional Court held that local self-government is self-administration and discretion exercised, within their competence defined by the Constitution and laws, by the communities i.e. territorial or local communities of the state administrative units provided for by law, where such territorial communities are composed of permanent residents of the said units (citizens of the Republic of Lithuania and other permanent residents); it is a local system of public authority, which operates on discretionary grounds and is not directly subordinate to state power institutions, it is not identified with state governance and it is formed and functioning on constitutional grounds other than state power (rulings of 9 February 2007 and 17 February 2016).

16.2. In interpreting the constitutional concept of self-government institutions, the Constitutional Court has noted that the right of self-government is inseparable from the institutions through which the said right is implemented and/or from the organisation and activities of the institutions that are accountable to them; the notion “self-government institutions” expresses the constitutional mission of relevant institutions of the territorial communities of administrative units: they are institutions through which the right of self-government of respective communities is implemented; as self-government institutions, municipal councils are representative institutions; they are directly provided for in the Constitution; no other self-government institutions, except municipal councils, are specified in the Constitution (inter alia, the rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

Municipal councils, when implementing the right of self-government guaranteed by the Constitution, may also form other municipal institutions that would have powers of authority, as well as other municipal establishments(inter alia, the rulings of 24 December 2002, 31 March 2010, and 17 November 2011); executive bodies that are accountable to municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities, i.e. as self-government institutions, since, under Paragraph 1 of Article 119 of the Constitution, the right of self-government is implemented through municipal councils (rulings of 24 December 2002 and 31 March 2010).

Thus, Paragraph 1 of Article 119 of the Constitution enshrines the constitutional purpose of municipal councils: they are political representative institutions of the territorial communities of the administrative units – self-government institutions – through which the right, guaranteed by the Constitution, of self-government of those communities is implemented.

16.3. When revealing the constitutional concept of a municipality, the Constitutional Court has held that the Constitution names the territorial communities of state administrative units (territorial communities; as municipalities (or local municipalities); on the other hand, the right of self-government is inseparable from the institutions through which the said right is implemented and/or from the organisation and activities of the institutions that are accountable to them; it is not a coincidence that the Constitution employs the notion of municipality not only in the sense of the territorial community of an administrative unit, but also in the sense of local self-government institutions and/or the institutions that are accountable to them (rulings of 24 December 2002 and 31 March 2010).

In view of such a constitutional concept of municipality, the Constitutional Court noted that the Constitution provides for two types of municipal institutions: municipal councils (representative institutions) and executive bodies (executive institutions) accountable to them; in the cases provided for in the Constitution and by law, municipal representative and executive institutions are granted the powers of authority; such municipal institutions are institutions of municipal authority and public administration; since decisions adopted by municipal councils are inseparable from the execution of these decisions, both the representative bodies of the municipalities provided for in the Constitution and the municipal executive institutions are, within their respective competences, responsible for the implementation of the right of self-government and for the direct implementation of laws, the decisions of the Government, and the municipal council; municipal councils, when implementing the right of self-government guaranteed by the Constitution, may also form other municipal institutions that would have powers of authority, as well as other municipal establishments (rulings of 24 December 2002 and 13 December 2004).

Thus, as the Constitutional Court has emphasised, the concept “municipal institutions” expresses the subordination of particular institutions to a certain municipality; municipal institutions are formed for the realisation of the interests of municipalities, the direct implementation of laws, decisions of the Government, and those of municipal councils; therefore, municipal councils, executive bodies that are accountable to them, and other institutions established by municipal councils should be considered municipal institutions as well (inter alia, the rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

Thus, the constitutional concepts “self-government institutions” and “municipal institutions” are not identical: the concept “municipal institutions” also includes a municipal institution – the municipal council, as well as other municipal institutions – executive bodies that are founded by and accountable to municipal councils and other institutions founded by municipal councils. On the other hand, Paragraph 3 of Article 119 of the Constitution should not be interpreted only literally, as, purportedly consolidating the powers of the legislature to regulate only the procedure for the organisation and activities of self-government institutions; it should be noted that, under this paragraph, the procedure for the organisation and activities of also other self-government institutions must be established by means of a law.

17. Paragraph 2 of Article 119 of the Constitution is also relevant for this constitutional justice case; it establishes the procedure for the formation of self-government institutions – municipal councils, as political representative institutions of the territorial communities of the administrative units: municipal councils are elected by the territorial communities of the relevant administrative units from their members on the basis of the principles of democratic elections.

17.1. When emphasising the importance of elections to representative institutions, the Constitutional Court has held on more than one occasion that, in a constitutional democracy, the formation of political representative institutions is subject to special requirements; these institutions may not be formed in such a way that would raise doubts as to their legitimacy or legality, inter alia, doubts as to whether the principles of a democratic state under the rule of law were upheld in the course of the election of persons to political representative institutions (inter alia, the conclusion of 5 November 2004 and the rulings of 9 November 2010 and 15 February 2019); otherwise, the trust of people in the representative democracy, state institutions, and the state itself would be undermined. Democratic elections are an important form of the participation of citizens in the governance of the state, as well as a necessary element of the formation of state political representative institutions; elections may not be regarded as democratic or their results as legitimate and legal if elections are held by trampling on the principles of democratic elections established in the Constitution and violating democratic electoral procedures (inter alia, the conclusion of 5 November 2004, the ruling of 1 October 2008, and the conclusion of 10 November 2012).

The Constitution consolidates the following universally recognised democratic principles of elections to political representative institutions: elections must be conducted on the basis of universal, equal, and direct suffrage, and the ballot must be secret; under the Constitution, only such elections are allowed where there is free and fair competition for the mandate, where the voters have the right and a real opportunity to choose from several candidates, where at the time of voting they can express their will freely and without being subjected to control; the requirements for transparency and publicity must be applied to the formation of a political representative institution (inter alia, the rulings of 9 November 2010, the conclusion of 10 November 2012, and the ruling of 15 February 2019).

17.2. The Constitutional Court has noted that the Constitution directly consolidates the grounds and procedure for forming (electing) self-government institutions – municipal councils (ruling of 8 July 2005); when forming municipal councils, regard must be paid to the principles of election of municipal council members, which are established in Paragraph 2 of Article 119 of the Constitution, as well as to other requirements of the Constitution; Paragraph 2 of Article 119 of the Constitution establishes that the members of municipal councils are elected as provided for by law; thus, the legislature has the constitutional competence to regulate by law the procedure of municipal council elections; the discretion of the legislature in regulating the procedure of municipal council elections is limited by the Constitution (ruling of 24 December 2002).

17.2.1. In this context, it should be noted that Paragraph 2 of Article 119 of the Constitution is linked to Article 34 of the Constitution, which consolidates the constitutional grounds for the active and passive electoral rights.

As the Constitutional Court held in its ruling of 1 October 2008, the provision of Article 34 of the Constitution whereby citizens who, on the day of the election, have reached 18 years of age have the electoral right (Paragraph 1) consolidates the so-called active electoral right, i.e. the opportunity of persons to participate in elections to particular institutions of public power by freely choosing for which of the nominated candidate or candidates to vote; the provision of Paragraph 2 of this article, whereby the right to stand for election is established by the Constitution of the Republic of Lithuania and by the election laws, consolidates the so-called passive electoral right, i.e. the opportunity for a person to stand as a candidate in the election of the members of a particular elective public power institution under the procedure established by the Constitution and election laws, i.e. it consolidates the opportunity to seek to be elected; Paragraph 3 of Article 34 of the Constitution establishes the restriction for the active and passive electoral rights – persons declared by a court to be legally incapacitated do not have this right.

When interpreting the provision of Paragraph 1 of Article 34 of the Constitution in conjunction with Paragraphs 2 and 3 of this article, in its ruling of 1 October 2008, the Constitutional Court also noted that, under Article 34 of the Constitution, citizens who, on the day of the election, have reached 18 years of age and who are not declared by a court to be legally incapacitated have the right to elect only those persons as members of particular public power institutions who meet the requirements (conditions) laid down in the Constitution and laws that are not in conflict with the Constitution; even though the constitutional nature of public power institutions, their place in the system of public power institutions, and their functions and powers determine the specific legal regulation of elections to each of these institutions, the legislature, while regulating, inter alia, the legal relations of elections of the members of municipal councils, must pay regard to the imperatives of the universal, equal, and direct suffrage and secret ballot, which stem from the Constitution.

17.2.2. In this context, it should also be noted that Paragraph 2 of Article 119 of the Constitution is related to Paragraph 3 of this article, which, as mentioned before, consolidates the powers of the legislature to establish the procedure for the organisation and activities of self-government institutions.

The Constitutional Court has noted that the provision of Paragraph 3 of Article 119 of the Constitution that the procedure for the organisation and activities of self-government institutions are established by law, inter alia, means that the legislature is under the duty to lay down by law the grounds and procedure for organising elections, inter alia, the nomination of candidates for municipal councils, the procedure for settling electoral disputes (rulings of 9 February 2007 and 11 May 2011).

17.2.3. When formulating the official constitutional doctrine of the system of elections to municipal councils in the rulings of 9 February 2007 and 11 May 2011, the Constitutional Court noted that:

legislature has very broad discretion when implementing the powers, which arise from Article 34, Paragraphs 2 and 3 of Article 119, and other provisions of the Constitution, to establish a system of elections to municipal councils;

the Constitution does not establish any requirements for the legislature as regards choosing a system of elections to municipal councils; it does not prohibit any changes to the chosen system of elections to municipal councils, either; for example, a law may establish exclusively proportional, or exclusively majoritarian system of elections to municipal councils, or a system which combines both the proportional and majoritarian systems; neither only a proportional electoral system, nor only a majoritarian electoral system, nor such an electoral system, which combines certain elements of the proportional and majoritarian electoral systems, may be regarded as violating the constitutional principle of direct suffrage or in itself creating the preconditions for violating the requirements of free and democratic elections, universal and equal suffrage, secret ballot, or other standards of elections in a democratic state under the rule of law.

the fact that the Constitution does not establish the requirements for the legislature as regards choosing a system of elections to municipal councils does not necessarily mean that no requirements arise from the Constitution for the legal regulation of the relations of elections to municipal councils; when regulating the relations of elections of the members of municipal councils by means of a law, the legislature must pay regard to the provisions – norms and principles – of the Constitution and the constitutional concept of local self-government.

17.2.4. Thus, whatever electoral system of municipal councils is chosen, when regulating by law the relations of elections to municipal councils, the legislature must respect the principles of democratic elections, inter alia, the principles of the universal, equal, and direct suffrage and secret ballot, enshrined in the Constitution, inter alia, Article 34 and Paragraph 2 of Article 119 thereof.

When revealing the principle of equal suffrage, the Constitutional Court has noted that, under the Constitution, when regulating electoral relations by law, it is necessary to ensure an equal active electoral right of all voters (the right to vote, i.e. to exercise the active electoral right), as well as an equal passive electoral right of all candidates (the right to be registered in an election as a candidate, i.e. the right to stand for election) (rulings of 11 May 2011).

In the context of this constitutional justice case, it should be noted that, under Paragraph 2 of Article 119 of the Constitution, the legislature, when regulating by law the relations of elections to municipal councils, must respect, inter alia, the requirements of equal suffrage, inter alia, to establish uniform requirements, arising from and not conflicting with the Constitution, for candidates for members of municipal councils.

17.3. It should be noted that Paragraph 2 of Article 119 of the Constitution establishes the specific requirement to exercise active and passive electoral rights in municipal council elections. As the Constitutional Court held in its ruling of 9 February 2007, Paragraph 2 of Article 119 of the Constitution links the active and passive electoral right of persons in the election of the members of municipal councils with the legal fact – the permanent residence of persons in a particular administrative unit on the territory of the Republic of Lithuania. The active and passive electoral rights for the election of members of municipal councils are held not only by citizens of the Republic of Lithuania, but also citizens of other states and stateless persons (ruling of 24 December 2002).

Thus, differently from Paragraph 1 of Article 56 and Paragraphs 1 and 2 of Article 78 of the Constitution, which lay down the requirements for the implementation of the active and passive electoral rights in the election of the Seimas or the President of the Republic, the requirement of citizenship of the Republic of Lithuania to exercise active and passive electoral rights in municipal council elections is not stipulated in Paragraph 2 of Article 119 of the Constitution. As mentioned before, under Paragraph 2 of Article 119 of the Constitution, in order to have the active and passive electoral rights in the election of the members of municipal councils, the legal fact is necessary – the permanent residence of persons in a particular administrative unit regardless of the citizenship of persons.

In the context of this constitutional justice case, it should be noted that Paragraph 2 of Article 119 of the Constitution does not establish that, in order to be elected, any member of the municipal council would be subject to the condition of citizenship of the Republic of Lithuania.

18. It should be noted that the right of self-government must be exercised through democratic representation (rulings of 9 February 2007 and 17 February 2016). As mentioned before, municipal councils are political representative institutions of the territorial communities of the administrative units – self-government institutions – through which the right, guaranteed by the Constitution, of self-government of those communities is implemented; such is their constitutional purpose consolidated in Paragraph 1 of Article 119 of the Constitution.

18.1. It should be emphasised that one of the principles of representative democracy is the equality of the mandate (status) of the members of political representative institutions, which presupposes the equal rights and duties of the members of the institutions concerned. It should be noted that this principle is consolidated in, inter alia, Paragraph 1 of Article 55 and Paragraph 4 of Article 59 of the Constitution, which enshrine the constitutional status of a member of the Seimas as a representative of the People with a free mandate; this principle is also enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution, which consolidate the constitutional status of members of the municipal council as representatives of the relevant territorial community with a mandate from that community.

It should be mentioned that the free mandate of a member of the Seimas, which is consolidated in the Constitution, discloses the essence of the constitutional legal status of a member of the Seimas as a representative of the People and is inseparably linked with the equality of the members of the Seimas; under the Constitution, each member of the Seimas represents the whole of the People; all members of the Seimas are equal and they must have the same opportunities to participate in the work of the Seimas; if the rights of the members of the Seimas were differentiated in such a way that unequal possibilities for their participation in the activities of the Seimas are created, the essential principle of this representative institution – the equality of the members of the parliament – would be violated; therefore, it would become impossible for the members of the Seimas to represent all the People at the Seimas and to express the interests of the People (inter alia, the rulings of 26 November 1993, 25 January 2001, and 1 July 2004).

It should also be mentioned that, when interpreting Paragraphs 1 and 2 of Article 119 of the Constitution, the Constitutional Court noted that, under the Constitution, members of municipal councils must be equal in their legal status (inter alia, the rulings of 24 December 2002, 30 May 2003, and 17 February 2016).

18.2. In the context of this constitutional justice case, it should be noted that the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community implies that all members of a municipal council have the same constitutional status, regardless of whether they are elected under a single (proportionate or majoritarian) electoral system or different electoral systems (if the legislature opts for the so-called mixed system of election of members of municipal councils). This means that, according to the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, inter alia, equal rights to be elected to positions in the municipal council, as well as the equal right to vote when adopting decisions of the municipal council; the principle of the equal mandate (status) of municipal council members in itself is not violated by the rule of proportional political representation in the internal structural units (subunits) of the municipal council, as well as by the fact that the members of the municipal council appointed to certain positions in the municipal council may acquire additional rights and responsibilities under the law.

In the context of this constitutional justice case, it should also be noted that the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, does not provide for any exceptions to the principle of equal mandate (status) of members of municipal councils, i.e. no members of municipal councils having exclusive status are provided for.

19. As mentioned before, the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof, provides for two types of municipal institutions: municipal councils (representative institutions) and executive bodies (executive institutions) accountable to them. The following features of municipal executive institutions are obvious from Paragraph 4 of Article 119 of the Constitution: their formation by means of a decision taken by the municipal council, their accountability to the municipal council that formed them, and the performance of the executive functions – direct implementation of laws and decisions of the Government and the municipal council.

19.1. As the Constitutional Court noted in its ruling of 24 December 2002, the formation of the executive bodies is the constitutional duty of municipal councils. The Constitution does not establish any types of executive bodies (collegial, one-person bodies) that are accountable to municipal councils or the procedure of their formation, their names, and interrelations; when regulating by law the formation, functions, and competence of the executive bodies accountable to municipal councils, regard must be paid to the principles of local self-government, which are established in the Constitution: representative democracy, the accountability of executive bodies to the representation, the supremacy of municipal councils over the executive bodies that are accountable to them, etc. (rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

The phrase “the municipal council shall form [...] executive bodies”, which is used in Paragraph 4 of Article 119 of the Constitution, also implies that the legislature has the discretion to establish by law which procedure must be applied in order to form the said executive bodies, which of the said bodies are collegial bodies and which are one-person bodies, as well as the type of their interrelations; the legislature also has the discretion to establish by law the structure of collegial executive bodies and the number of their members, or to leave it, by law, to be established by municipal councils (rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

It should be noted that the executive bodies specified in Paragraph 4 of Article 119 of the Constitution are not municipal councils’ internal structural units (subunits) responsible for ensuring the work of the municipal council itself (rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

19.2. The Constitutional Court has noted that the relations between municipal councils and their executive bodies are based on the constitutional principles of the accountability of executive bodies to the representation and the supremacy of municipal councils over the executive bodies accountable to them; however, the aforementioned relations are not based on the principle of the separation of powers (ruling of 24 December 2002).

The principles of the accountability of executive bodies to the representation and of the supremacy of municipal councils over the executive bodies that are accountable to them, both of which are established in the Constitution, imply that municipal councils have the powers to control the executive bodies that are established by municipal councils and are accountable to them; under the Constitution, the right of self-government is implemented through municipal councils; thus, all decisions adopted by the executive bodies accountable to municipal councils on the issues assigned to the competence of municipalities are subordinated to decisions of relevant municipal councils (ruling of 24 December 2002). Thus, under the Constitution, the executive bodies accountable to municipal councils may not be formed from among the members of the municipal councils that establish the said bodies (inter alia, the rulings of 24 December 2002, 13 December 2004, and 31 March 2010).

19.3. It should be noted that the functions and competence of the municipal executive institutions are established only in general terms: under Paragraph 4 of Article 119 of the Constitution, the executive bodies accountable to municipal councils are formed for the direct implementation of the laws, the decisions of the Government, and those of municipal councils; the functions and competence of the executive bodies accountable to municipal councils are left to be established by the Seimas by means of a law (ruling of 24 December 2002).

As mentioned before, both the representative bodies of the municipalities provided for in the Constitution and the municipal executive institutions are the institutions of municipal authority and public administration, which are, within their respective competences, responsible for the implementation of the right of self-government and for the direct implementation of the laws and the decisions of the Government, and the municipal council. However, when establishing the competence of municipal councils and the executive bodies accountable to them, the legislature must pay regard to the constitutional imperatives that the executive bodies accountable to municipal councils are founded by the municipal council itself and that the municipal council forms executive bodies accountable to it by law (decision of 11 February 2004).

It should be emphasised that executive bodies that are accountable to municipal councils may not be treated as ones through which the right of self-government is implemented by territorial communities; therefore, the said executive bodies may not replace municipal councils, the powers of the executive bodies may not be dominant in respect to the powers of municipal councils; it is not permitted to establish any such legal regulation whereby executive bodies accountable to municipal councils would be equated to the municipal councils that have formed them (rulings of 24 December 2002, 13 December 2004, and 31 March 2010); under the Constitution, the executive bodies accountable to municipal councils do not have the right to adopt such decisions that are not based on laws, decisions of the Government, and/or relevant municipal councils; the said bodies also may not adopt such decisions the legal force of which would compete that of decisions passed by the municipal councils (ruling of 24 December 2002).

20. In the context of the constitutional justice case at issue, it should be noted that Article 119 of the Constitution, Paragraphs 1 and 4 of which establish the types of municipal institutions, does not provide for the institution of the head of a municipality as the community of a territorial administrative unit of the state.

It should also be noted that, as Paragraphs 1 and 2 of Article 119 of the Constitution does not establish the position of the head of a municipal council directly elected by the relevant local community and Paragraph 4 of this article does not provide for other than the municipal executive institutions formed by municipal councils, inter alia, such executive institutions, which would be directly elected by the respective territorial community.

Consequently, in the absence of a relevant amendment to Article 119 of the Constitution in accordance with the procedure established by the Constitution, it is not allowed to establish by law a single-person institution of municipal authority and public administration (named, inter alia, the “mayor”) directly elected by the relevant territorial community, where that institution, among others, would be responsible for the direct implementation of laws, the decisions of the Government, and those of the municipal council. It should be noted that, if a review of Article 119 of the Constitution is undertaken, the principles of local self-government enshrined in the Constitution, inter alia, principles of representative democracy, the accountability of executive institutions to the representative institution (municipal council), the supremacy of the municipal council over other municipal institutions, etc., should be respected.

In this context, it should also be noted that the fundamental principle of democracy, which is enshrined in the Constitution and may not be denied by any amendment to the Constitution, presupposes democratic change of one-person institutions and the restriction of one-person power. Therefore, the introduction in the Constitution of a single-person municipal public administration (executive) institution (named, inter alia, the “mayor”) directly elected by the respective territorial community should also determine how many terms of office in such an elective position may be held by the same person. In addition, taking into account the interests of the state and society, the Constitution may establish the requirement of citizenship of the Republic of Lithuania for persons seeking to be elected to office in such a single-person municipal institution.

V

The assessment of the compliance of Item 1 of Paragraph 3 of Article 3 and Paragraph 1 of Article 19 of the Law on Local Self-Government with the Constitution

21. In this constitutional justice case, the Constitutional Court examines, among others, the compliance of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, insofar as this item provides that the municipal council is headed by the member of the municipal council directly elected in a single-member constituency, i.e. the municipal mayor, and that the mayor is the head of the municipality who exercises the powers laid down in this and other laws, and Paragraph 1 (wording of 26 June 2014) of Article 19 of the same law, insofar as it establishes that the mayor is directly elected for the term of the powers of a municipal council, with Article 119 of the Constitution.

22. In the opinion of the petition, the different way of the election of the mayor and other members of the municipal council and their accountability to the residents, which is consolidated in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 and Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government determines the exceptional status of the mayor in the municipal council, which is incompatible with Article 119 of the Constitution. According to the petitioner, under the Constitution, only municipal councils may form other municipal institutions; therefore, the petitioner has doubts as to whether, in the absence of amendments to the Constitution another relatively autonomous institution (directly elected mayor) may emerge in the system of self-government, without the municipal council being involved in its formation (election).

23. When deciding on the compliance of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, to the extent specified by the petitioner, with the Constitution, it should be noted that, as mentioned before:

the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof, provides for two types of municipal institutions: municipal councils (representative institutions) and executive bodies (executive institutions) accountable to them; under Paragraph 4 of Article 119 of the Constitution, one of the features of municipal executive institutions is their formation by means of a decision taken by the municipal council; municipal councils, when implementing the right of self-government guaranteed by the Constitution, may also form other municipal institutions that would have powers of authority, as well as other municipal establishments;

Article 119 of the Constitution, Paragraphs 1 and 4 of which establish the types of municipal institutions, does not provide for the institution of the head of the municipality as the community of a territorial administrative unit of the state; Paragraphs 1 and 2 of Article 119 of the Constitution does not establish the position of the head of the municipal council directly elected by the relevant local community and Paragraph 4 of this article does not provide for other than the municipal executive institutions formed by municipal councils, inter alia, such executive institutions, which would be directly elected by the respective territorial community;

the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community presupposes that all members of a municipal council have the same constitutional status, regardless of whether they are elected under a single (proportionate or majoritarian) electoral system or different electoral systems (if the legislature opts for the so-called mixed system of election of members of municipal councils); this means that, according to the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, inter alia, equal rights to be elected to positions in the municipal council, as well as the equal right to vote when adopting decisions of the municipal council; the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, does not provide for any exceptions to the principle of equal status of members of municipal councils, i.e. no members of municipal councils having exclusive status are provided for.

23.1. As mentioned before, Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government prescribes: “[...] a representative institution of the municipality – the municipal council which possesses the rights and duties of local government and public administration and which is headed by the member of the municipal council – mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Law of the Republic of Lithuania on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils). The mayor shall be the head of the municipality who exercisesthe powers provided for by this Law and other laws”.

23.1.1. Summarising, from the point of view relevant to this constitutional justice case, the legal regulation laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government and the related legal regulation, it was noted that, under this legal regulation, the mayor is not expressis verbis specified as a municipal institution but he or she is the member of the municipal representative institution, the municipal council. It was also noted that this legal regulation consolidates the exceptional legal status of the mayor, as a member of the municipal council, which has the following features of a separate municipal institution:

the exclusive method of electing the mayor to duties: the mayor is directly elected by all the municipal community and not by the members of the municipal council;

specific powers (which are not linked to the duties at the municipal council): the mayor, who ex officio is the head of the municipal council, is also granted the powers of the head of the municipality as a community of an administrative territorial unit of the state, inter alia, the community thereof, which implements the right of self-government guaranteed by the Constitution; these powers are established by this law and other laws.

23.1.2. As mentioned before, the specific powers of the mayor, which are established in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, are concretised, inter alia, in Paragraph 2 (wording of 26 June 2014) of Article 5 and Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government.

It has also been mentioned that, under the legal regulation established in Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, the mayor is a single-person municipal institution separate from the municipal council who has the local government and public administration powers laid down for him or her in laws; under the legal regulation laid down in Paragraph 2 (as amended on 10 November 2020) of Article 20 of this law, the mayor is granted not only the powers of the head of the municipal council but also the powers of the mayor as an entity of local government and public administration (which are separate from the powers of the municipal council).

23.1.3. Thus, when interpreting the legal regulation established in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government in conjunction with the legal regulation consolidated in Paragraph 2 (wording of 26 June 2014) of Article 5 and Paragraph 2 (as amended on 10 November 2020) of Article 20 of this law, it should be noted that, under this regulation, contrary to the assertions made by the representative of the party concerned, the mayor is not only the member and head of the municipal representative institution – municipal council, but also a single-person municipal institution separate from the municipal council – the head of the municipality as an administrative territorial unit of the state established by law, inter alia, its community, who has the local government and public administration powers laid down for him or her in laws.

23.2. In view of the above, it should be held that the impugned legal regulation consolidated in the provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government “[…] which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils). The mayor shall be the head of the municipality who exercises the powers provided for by this Law and other laws” established such a legal status of the mayor, under which he or she is the exclusive member of the municipal council – the head of the municipal council directly elected by all the municipal community and not by the members of the municipal community, as well as a single-person municipal institution separate from the municipal council – the head of the municipality as an administrative territorial unit of the state established by law, inter alia, its community, who has the local government and public administration powers laid down for him or her in laws.

23.3. Thus, the impugned legal regulation, which is consolidated in Item 1 of Paragraph 3 of Article 3 of the Law on Local Self-Government, establishes the municipal institution (the member of the municipal council – the mayor), which is not provided for in the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof; this institution is neither a representative institution (municipal council) nor an executive or other institution formed by means of a decision taken by the municipal council – the head of a municipal council directly elected by the relevant local community and the head of the municipality as a community of an administrative territorial unit of the state. Such a legal regulation should also be assessed as violating the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the right to be elected to a position in the municipal council.

23.4. Taking into account the foregoing arguments, the conclusion should be made that the provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government “[…] which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils). The mayor shall be the head of the municipality who exercises the powers provided for by this Law and other laws” are in conflict with Paragraphs 1, 2, and 4 of Article 119 of the Constitution.

24. As mentioned before, the impugned provisions “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is linked to the legal regulation established in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government. It was also noted that this provision should be interpreted as consolidating the exclusive method of electing the mayor as one of the members of the municipal council, i.e. that the mayor is directly elected by all the municipal community and not by the members of the municipal council.

24.1. When deciding on the compliance of the provisions “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government with the Constitution, it should be noted that, as mentioned before:

the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community presupposes that all members of a municipal council have the same constitutional status, regardless of whether they are elected under a single (proportionate or majoritarian) electoral system or different electoral systems (if the legislature opts for the so-called mixed system of election of members of municipal councils); this means that, according to the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, inter alia, equal rights to be elected to positions in the municipal council, as well as the equal right to vote when adopting decisions of the municipal council;

the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, does not provide for any exceptions to the principle of equal mandate (status) of members of municipal councils, i.e. no members of municipal councils having exclusive status are provided for, inter alia, it does not establish the position of the head of a municipal council directly elected by the relevant local community.

24.2. It has been mentioned that, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the mayor, inter alia, is the exclusive member of the municipal council – the head of the municipal council. In view of the above, the impugned provision of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government should be interpreted as establishing an exclusive method of electing the head of a municipal council to this position in the municipal council: the head of the municipal council, who is also the member of the municipal council, is elected not by members of the municipal council but by the municipal community.

24.3. Thus, such a legal regulation should be assessed as violating the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the right to be elected to a position in the municipal council.

24.4. In the light of the foregoing arguments, the conclusion should be drawn that the provisions “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

25. The Constitutional Court has held more than once that, if it finds the unconstitutionality of provisions that are not impugned by a petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their constitutionality, it must state that the said provisions that have not been impugned by the petitioner have been found to be unconstitutional (inter alia, the rulings of 11 July 2014, 26 June 2017, and 11 September 2020); The implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the rulings of 29 November 2001, 22 September 2015, and 11 September 2020). Therefore, under the Constitution, the Constitutional Court must remove from the legal system all anti-constitutional provisions whose conflict with the Constitution becomes apparent in a constitutional justice case under consideration (inter alia, the rulings of 12 June 2020, 11 September 2020, and 19 March 2021).

25.1. As mentioned before, Paragraph 9 (wording of 14 February 2019) of Article 13 of the Law on Local Self-Government, inter alia, prescribes: “Decisions of the municipal council shall be adopted by a majority vote of all the members of the council participating in the sitting. In the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote.”

It has also been mentioned that this legal regulation consolidated the exclusive right of a decision-making vote of the member of a municipal council – the mayor, as the head of a municipal council directly elected by all the municipal community – in making decisions of the municipal council, which is not possessed by other members of the municipal council: if the votes of the members of the municipal council attending the meeting are equally divided, the mayor’s vote shall be decisive.

It should be noted that such a legal regulation is consolidated in the provision “in the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote” of Paragraph 9 (wording of 14 February 2019) of Article 13 of the Law on Local Self-Governance.

25.2. When assessing the constitutionality of this provision, it should be noted that, as mentioned before, the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community implies that all members of a municipal council have the same constitutional status; this means that, according to the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, inter alia, the equal right to vote when adopting decisions of the municipal council.

25.3. Therefore, the legal regulation consolidated in the provision “in the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote” of Paragraph 9 (wording of 14 February 2019) of Article 13 of the Law on Local Self-Governance, under which the exclusive right of a decision-making vote of the member of a municipal council – the mayor – in making decisions of the municipal council is established, disregarded the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the equal right to vote when adopting decisions of the municipal council.

25.4. Taking into account the foregoing arguments, the conclusion should be made that the provision “in the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote” of Paragraph 9 (wording of 14 February 2019) of Article 13 of the Law on Local Self-Governance is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

VI

The assessment of the compliance of the provision of Paragraph 3 and of Paragraph 4 of Article 1 of the Law on Elections to Municipal Councils with the Constitution

26. As mentioned before, 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, according to the Constitution, the Constitutional Court must remove from the legal system all anti-constitutional provisions whose conflict with the Constitution becomes apparent in a relevant constitutional justice case under consideration.

The Constitutional Court has held on more than one occasion that, having found that the provisions of a law whose compliance with the Constitution is not impugned by a petitioner, but which regulate part of the relationships covered by an impugned law, are in conflict with the Constitution, the Constitutional Court must state that such provisions are unconstitutional; if the Constitutional Court did not state the unconstitutionality of the not impugned legal act related to the impugned legal act, this would not be in line with the constitutional mission of the Constitutional Court to administer constitutional justice, and to guarantee both the supremacy of the Constitution in the legal system and constitutional lawfulness.

27. It should be noted that the provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government “which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils)” establishes the following elements of the legal status of the mayor: the mayor is one of the members of the municipal council; the mayor is elected directly in a single-member constituency; the mayor is assigned the functions of the head of the municipal council. It should also be noted that the provisions consolidating these elements of the legal status of the mayor are linked to Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014), which prescribe the following:

3. One municipality shall form one multi-member constituency. Under the proportional electoral system, voters shall elect in a municipality (a multi-member constituency) members of the municipal council (except the member of the municipal council – the mayor) of that municipality.

4. Under the majority vote system, a single-member constituency, composed of the whole municipality, shall elect the member of the council of that municipality - the mayor.”

27.1. As mentioned before, under the legal regulation established in Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014), the community of the municipality, as an administrative territorial unit of the state established by law, elects the members of the municipality, which implements the right of self-government of the community, in two following ways:

members of the municipal council (except the mayor) of the municipality shall be elected under the proportional electoral system in one multi-member constituency, which covers the whole territory of the municipality, therefore, all the municipal community;

the mayor is elected under the absolute majority vote system, in a single-member constituency, which covers the whole territory of the municipality, therefore, all the municipal community, i.e. the mayor is elected in a single-member constituency of the same size as the multi-member constituency, in which other members of the municipal council are elected.

It has also been mentioned that, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the mayor, inter alia, is the exclusive member of the municipal council – the head of the municipal council.

27.2. In view of the above, it should be noted that the legal regulation established in the provisions of Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014) consolidates the exclusive method of electing the mayor as one of the members of the municipal council: the mayor is the only member of the municipal council, who is elected under the absolute majority vote system by the municipal community of the same size, which, according to the proportional electoral system, elects all other members of the municipal council. It should also be noted that this legal regulation has established an exclusive method of electing the mayor, as the head of a municipal council, to this position in the municipal council: the head of the municipal council, who is also the member of the municipal council, is elected not by members of the municipal council but by the municipal community.

It should be noted that such a legal regulation is consolidated in the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 of Article 1, as well as in Paragraph 4 of the same article of the Law on Elections to Municipal Councils.

27.3. Thus, the legal regulation established in Paragraph 4 of the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014), to the extent that it consolidates the exclusive method of electing the mayor as one of the members of the municipal council and as its head, is identical to the legal regulation consolidated in the provision “which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils” of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government.

It should be noted that, from the same aspect, the legal regulation established in Paragraph 4 of the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 of Article 1 of the Law on Elections to Municipal Councils (wording of 26 June 2014) is also identical to the legal regulation consolidated in the provision “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government, which also enshrines, as mentioned before, an exclusive method of electing the head of a municipal council to this position in the municipal council (who is elected not by members of the municipal council but by the municipal community).

27.4. In this ruling of the Constitutional Court, it has been held that such a legal regulation that is laid down in the provision “which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils)” of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government and in the provision “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the same law should be assessed as violating the principle enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the right to be elected to a position in the municipal council.

In view of the above, on the grounds of the same arguments, it should be held that also the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 and Paragraph 4 of Article 1 of the Law on Elections to Municipal Councils are in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

27.5. In view of the foregoing arguments, the conclusion should be made that the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 of Article 1 and Paragraph 4 of the same article of the Law on Elections to Municipal Councils are in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

VII

The assessment of the compliance of the provisions of Paragraphs 1 and 5  of Article 19 and Paragraph 7 of the same article of the Law on Local Self-Government and the provision of Paragraph 2 of Article 2 of the Law on Elections to Municipal Councils with the Constitution

28. As mentioned before, 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, according to the Constitution, the Constitutional Court must remove from the legal system all anconstitutional provisions whose conflict with the Constitution becomes apparent in a relevant constitutional justice case under consideration.

It has also been mentioned that, if the Constitutional Court finds the unconstitutionality of provisions that are not impugned by a petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their constitutionality, and also if it finds the unconstitutionality of the provisions of a law whose compliance with the Constitution is not impugned by a petitioner but which regulate part of the relationships covered by an impugned law, it must state that the said provisions that are not impugned by the petitioner have been found to be unconstitutional.

29. As mentioned before, the exclusive method of electing the mayor, as laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, is related, inter alia, to the requirements for the mayor and the grounds for the loss of his or her powers, which are established in this law.

29.1. It should be noted that Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government is linked to the provision “only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of this law.

As mentioned before, this provision consolidates the requirement for the members of the municipal council – the mayor and deputy mayors – to be the citizens of the Republic of Lithuania: this is an additional requirements for the persons who may be elected as the member of municipal councils – the mayor (it is not established for the persons who may be elected as other members of the municipal council); at the same time, this is also an additional requirement for the elected members of the municipal council who may be appointed by the municipal council to the position of a deputy mayor.

29.2. When assessing the compliance of the provision “only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government with the Constitution, it should be noted that, as mentioned before:

according to Paragraph 2 of Article 119 of the Constitution, the legislature, when regulating by law the relations of elections to municipal councils, must respect the requirements of equal suffrage, inter alia, to establish uniform requirements, arising from and not conflicting with the Constitution, for candidates for members of municipal councils; Paragraph 2 of Article 119 of the Constitution does not establish the requirement of citizenship of the Republic of Lithuania to exercise active and passive electoral rights in municipal council elections, inter alia, it does not establish that, in order to be elected, any member of the municipal council would be subject to the condition of citizenship of the Republic of Lithuania; under Paragraph 2 of Article 119 of the Constitution, in order to have the active and passive electoral rights in the election of the members of municipal councils, the legal fact is necessary – the permanent residence of persons in a particular administrative unit regardless of the citizenship of persons;

the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community presupposes that all members of the municipal council have the same constitutional status, regardless of whether they are elected under a single (proportionate or majoritarian) electoral system or different electoral systems (if the legislature opts for the so-called mixed system of election of members of municipal councils); this means that, according to the Constitution, inter alia, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, inter alia, equal rights to be elected to positions in the municipal council, as well as the equal right to vote when adopting decisions of the municipal council.

29.3. It should be held that the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government consolidates the requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is not established in Paragraph 2 of Article 119 of the Constitution for the implementation of the passive electoral right in the elections to municipal councils for the persons to be elected as members of municipal councils. In view of the above, it should also be held that the provision “only the citizens of the Republic of Lithuania may become deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government consolidates the requirement of citizenship of the Republic of Lithuania for the members of the municipal council in order to hold the position of a deputy mayor in the municipal council, although such a requirement is not established in Paragraph 2 of Article 119 of the Constitution for persons who may be elected as members of municipal councils.

29.4. Thus, the legal regulation consolidated in the provision “only the citizens of the Republic of Lithuania may become deputy mayors” of Paragraph 1 of Article 19 of the Law on Local Self-Governance, disregarded the requirement of equal suffrage, enshrined in Paragraph 2 of Article 119 of the Constitution, to establish uniform requirements, which arise from the Constitution and are not in conflict with it, for candidates for members of municipal councils, and the legal regulation enshrined in the provision “only the citizens of the Republic of Lithuania may become deputy mayors” disregarded the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the right to be elected to a position in the municipal council.

29.5. In the light of the foregoing arguments, the conclusion should be drawn that the provision “only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

30. It should be noted that Paragraph 5 of Article 19 of the Law on Local Self-Government, which establishes the grounds for the loss of the powers of deputy mayors, is linked to the provision “only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014) of the same article.

30.1. Paragraph 5 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government prescribes: “The powers of the deputy mayor shall be terminated if they lose the citizenship of the Republic of Lithuania or a mandate of a member of the municipal council.” Thus, the provision “lose the citizenship of the Republic of Lithuania” of this paragraph consolidates the special basis for the loss of the powers of the deputy mayor – the loss of citizenship of the Republic of Lithuania, which was not established for other positions in the municipal council, to which the municipal council appoints the members of the municipal council.

30.2. As mentioned before, the special basis for the loss of the powers of the deputy mayor – the loss of citizenship of the Republic of Lithuania, which is consolidated in the provision “if they lose the citizenship of the Republic of Lithuania” of Paragraph 5 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government, is determined by the said additional requirement of citizenship of the Republic of Lithuania for the elected members of the municipal council who may be appointed by the municipal council to the position of a deputy mayor, which is laid down in the provision “only the citizens of the Republic of Lithuania may become deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government.

30.3. In this ruling of the Constitutional Court, it has been held that the legal regulation consolidated in the provision “only the citizens of the Republic of Lithuania may become deputy mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government disregarded the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community, which implies the equal constitutional status of all members of the municipal council, inter alia, their equal rights to participate in the work of the municipal council, among others, the right to be elected to a position in the municipal council.

In view of the above, on the grounds of the same arguments, it should be held that also the provision “if they lose the citizenship of the Republic of Lithuania” of Paragraph 5 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

30.4. In the light of the foregoing arguments, the conclusion should be drawn that the provision “if they lose the citizenship of the Republic of Lithuania” of Paragraph 5 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution.

31. It should be noted that the provision “Only the citizens of the Republic of Lithuania may become mayors [...]” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is linked to Paragraph 7 of this article, which establishes the following: “The powers of the mayor shall be terminated and his or her mandate of the member of the council shall be revoked if he or she loses the citizenship of the Republic of Lithuania or a mandate of the member of the municipal council.”

31.1. As mentioned before, Paragraph 7 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Governance establishes the special basis for the loss of the powers of the member of the municipal council, the mayor – the loss of citizenship of the Republic of Lithuania, which is not established for the powers of other members of the municipal council.

It has also been mentioned that such a special basis for the loss of the powers of the member of the municipal council, the mayor, is determined by, inter alia, an additional requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is consolidated in the said the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government.

31.2. In this ruling of the Constitutional Court, it has been held that the legal regulation consolidated in the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Governance, disregarded the requirement of equal suffrage, enshrined in Paragraph 2 of Article 119 of the Constitution, to establish uniform requirements, which arise from the Constitution and are not in conflict with it, for candidates for members of municipal councils.

In view of the above, on the grounds of the same arguments, it should be held that also the provision of Paragraph 7 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraph 2 of Article 119 of the Constitution.

31.3. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 7 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government is in conflict with Paragraph 2 of Article 119 of the Constitution.

32. As mentioned before, the exclusive method of electing the mayor, as laid down in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, is related, inter alia, to the requirements for the mayor, which are established in Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils.

32.1. Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils, inter alia, prescribes: “Any permanent resident of a particular municipality, who is at least 18 years of age on polling day, may be elected as member of the council of that municipality; a citizen of the Republic of Lithuania who may be elected member of a particular municipality may be elected member of the council and mayor of that municipality.”

As mentioned before, Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections lays down an additional requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is not established for the persons who may be elected as other members of the municipal council. It should be noted that such a requirement is consolidated in the provision “and a citizen of the Republic of Lithuania who may be elected member of a particular municipal council may be elected the member of that council who is the mayor of that municipality”.

It was also mentioned that this requirement is also laid down in the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government.

32.2. In this ruling, it has been held that the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government consolidates the requirement of citizenship of the Republic of Lithuania for the persons who may be elected as the member of municipal councils – the mayor, which is not established in Paragraph 2 of Article 119 of the Constitution for the implementation of the passive electoral right in the elections to municipal councils for the persons to be elected as members of municipal councils. In view of this, it has also been held that the legal regulation consolidated in the provision “only the citizens of the Republic of Lithuania may become [...] mayors” of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government disregarded the requirement of equal suffrage, enshrined in Paragraph 2 of Article 119 of the Constitution, to establish uniform requirements, which arise from the Constitution and are not in conflict with it, for candidates for members of municipal councils.

On the grounds of the same arguments, it should be held that the provision “a citizen of the Republic of Lithuania who may be elected member of a particular municipal council may be elected the member of that council who is the mayor of that municipality” of Paragraph 2 of Article 2 of the Law on Elections to Municipal Councils is in conflict with Paragraph 2 of Article 119 of the Constitution.

32.3. In the light of the foregoing arguments, the conclusion should be made that the provision “and a citizen of the Republic of Lithuania who may be elected member of a particular municipal council may be elected the member of that council who is the mayor of that municipality” of Paragraph 2 (wording of 14 June 2018) of Article 2 of the Law on Elections to Municipal Councils is in conflict with Paragraph 2 of Article 119 of the Constitution.

VIII

The assessment of the compliance of Paragraph 2 of Article 5 and Paragraph 2 of Article 20 of the Law on Local Self-Government with the Constitution

33. In this constitutional justice case, the Constitutional Court examines, among others, the compliance of Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government with Article 119 of the Constitution, insofar as, under this paragraph, according to the petitioner, the municipal mayor is equated with autonomous municipal institutions, which performs public administration functions, and Paragraph 2 (as amended on 10 November 2020) of Article 20 of the same law, insofar as, according to the powers established therein, the mayor, according to the petitioner, is equated with the separate single-person municipal institution, which has the features of the executive institution, with Article 119 of the Constitution.

34. In the opinion of the petitioner, under Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, the municipal mayor is equated with autonomous municipal institutions, which performs public administration functions, but, given the nature and essence of the powers of the municipal mayor laid down in Paragraph 2 (wording of 26 June 2014 with subsequent amendments) of Article 20 of this law, the municipal mayor also has the features of the executive institution. According to the petitioner, such a legal regulation does not comply with the system of local self-government institutions, which is laid down in Article 119 of the Constitution, in which, the representative institution is the municipal council, which has an exceptional status and competence over the executive bodies accountable to it. the Constitution does not distinguish any single-person entity, which could be incorporated into the composition of the representative institution and which, at the same time, would carry out independently public administration and executive functions.

35. Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, inter alia, prescribes: “Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of a municipality, other heads of municipal establishments and services, civil servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council”.

35.1. As regards the compliance of Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, to the extent specified by the petitioner, with of the Constitution, it should be noted that, as mentioned before:

the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof, provides for two types of municipal institutions: municipal councils (representative institutions) and executive bodies (executive institutions) accountable to them;

the following features of municipal executive institutions are obvious from Paragraph 4 of Article 119 of the Constitution: their formation by means of a decision taken by the municipal council, their accountability to the municipal council that formed them, and the performance of the executive functions – direct implementation of laws and decisions of the Government and the municipal council; the executive bodies specified in Paragraph 4 of Article 119 of the Constitution are not municipal councils’ internal structural units (subunits) responsible for ensuring the work of the municipal council itself; under the Constitution, the executive bodies accountable to municipal councils may not be formed from among the members of the municipal councils that establish the said bodies.

35.2. As mentioned before, Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government establishes that, in implementing the powers established for them by law, both the municipal council and the mayor implement the functions of municipalities, which, in regard to their business activities, are described as local government functions and public administration functions; under this legal regulation, when interpreted in the context of Paragraphs 18 and 20 of Article 2 and Item 1(a) of Paragraph 1 of Article 5 of the Law on Public Administration (wording of 28 May 2020), the municipal council and the mayor are separate entities of public administration.

In view of the above, summarising, from the aspect relevant to this constitutional justice case, the legal regulation laid down in Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, it should be noted that, under this legal regulation, the mayor as a single-person municipal institution separate from the municipal council who has the local government and public administration powers laid down for him or her in laws, inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal councils.

It has been mentioned that, under Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, the mayor, inter alia, is the member of the municipal council.

35.3. Therefore, under the legal regulation consolidated in the provisions “Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of the municipality, other heads of municipal establishments and services, state servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council” of Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, in addition to the municipal council and the executive institution (institutions) of the municipality, one more separate municipal institution is established – the mayor, who has the local government and public administration powers laid down for him or her in laws, inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal council. It should be noted that, under this legal regulation, inter alia, the powers of an executive institution are granted to the mayor, who is, inter alia, the member of the municipal representative institution – the municipal council.

35.4. In this ruling of the Constitutional Court, it has been held that the impugned legal regulation, which is consolidated in Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3 of the Law on Local Self-Government, establishes the municipal institution (the member of the municipal council – the mayor), which is not provided for in the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof; this institution is neither a representative institution (municipal council) nor an executive or other institution formed by means of a decision taken by the municipal council. It should be held that also the legal regulation laid down in Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government should be assessed in the same way.

In addition, it should be held that the impugned legal regulation also disregarded the requirement, arising from Paragraph 4 of Article 119 of the Constitution, not to grant the powers of executive institutions to members of municipal representative institutions – municipal councils.

35.5. In view of the foregoing arguments, it should be held that the provisions of Paragraph 2 of Article 5 of the Law on Local Self-Government “local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of the municipality, other heads of municipal establishments and services, state servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council”, insofar as, under those provisions, local government and public administration functions are performed by the mayor, are in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

36. It should be held that Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, which concretises the powers of the mayor, is linked with the legal regulation consolidated in Paragraph 2 (wording of 26 June 2014) of Article 5 of this law.

36.1. As it clear from the overall legal regulation established in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government that it consolidates the powers of the mayor of the following kinds:

the powers of the mayor, as the head of the municipal council, for example, the powers related to the planning and organisation of activities of the municipal council, recommendation of candidates for the positions in the municipal council, and the organisation of work of the secretariat of the municipal council (Items 1, 4, 6, 7, 8, 9 and 10);

local authority powers exercised by the mayor as the head of the municipal council, for example, the powers linked to the representation of the municipality, the establishment of the fields of activities of a deputy mayors, the formation, control and supervision of executive and other institutions of the municipality, the appointment of the heads of the budgetary establishments and public establishments, the division of residential localities or their parts into elderships, and the announcement of a local population opinion survey (Items 2, 3, 4, 5, 10, 11, 12, 15, 16, 17, 22, and 23);

the powers of the mayor as a public administration entity, inter alia, to carry out executive activities, for example, the powers related to the restoration of the rights of ownership of the real estate to religious communities and associations, the issuance of permits to use areas intended for fishing, the approval of plans for measures aimed at the use, restoration and protection of fish stock, and the provision of premises to the members of the Seimas (Items 18, 19, and 21).

Summarising, from the point of view relevant to this constitutional justice case, the legal regulation laid down in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, it was noted that, under this legal regulation, the mayor is granted not only the powers of the head of the municipal council but also the powers of the mayor as an entity of local government and public administration (which are separate from the powers of the municipal council), inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal councils.

36.2. It should be held that the legal regulation laid down in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, from the aspect that it consolidates the local government and public administration powers of the mayor, who, inter alia, is the member of the municipal council, inter alia, to perform executive activities – to implement legal acts, inter alia, laws, government resolutions, and decisions of municipal council, is identical to the legal regulation, which is consolidated in the provisions of Paragraph 2 of Article 5 of the Law on Local Self-Government “Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of the municipality, other heads of municipal establishments and services, state servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council”, insofar as, under those provisions, local government and public administration functions are performed by the mayor.

36.3. In this ruling of the Constitutional Court, it was held that the legal regulation, which is consolidated in the said provisions of Paragraph 2 (wording of 26 June 2014) of Article 5 of the Law on Local Self-Government, establishes the municipal institution (the member of the municipal council – the municipal mayor), which is not provided for in the Constitution, inter alia, Paragraphs 1 and 4 of Article 119 thereof; this institution is neither a representative institution (municipal council) nor an executive or other institution formed by means of a decision taken by the municipal council; this legal regulation also disregarded the requirement, arising from Paragraph 4 of Article 119 of the Constitution, not to grant the powers of executive institutions to members of municipal representative institutions – municipal councils.

36.4. In view of the above, on the basis of the same arguments, it should be held that also the overall legal regulation laid down in Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government, which, as mentioned before, establishes the powers of the mayor as the head of local government and an entity of local government institution and public administration, is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

36.5. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 2 (as amended on 10 November 2020) of Article 20 of the Law on Local Self-Government is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

IX

On the official publication of the ruling of the Constitutional Court

37. Paragraph 1 of Article 102 of the Constitution stipulates that the Constitutional Court decides whether the laws and other acts of the Seimas are in conflict with the Constitution and whether the acts of the President of the Republic and the Government are in conflict with the Constitution and laws.

As the Constitutional Court has held on more than one occasion, it exercises constitutional judicial review; the Constitutional Court is the institution of constitutional justice; while deciding, within its competence, on the compliance of lower-ranking legal acts (parts thereof) with higher-ranking legal acts, inter alia (and, first of all), with the Constitution, and exercising its other constitutional powers, the Constitutional Court – an autonomous and independent court – administers constitutional justice and guarantees constitutional lawfulness and the supremacy of the Constitution in the legal system.

In this context, it should be noted that the concept of constitutional justice, which stems from the Constitution, implies not a perfunctory and nominal constitutional justice, but such final acts of the Constitutional Court that are not unjust according to their content; otherwise, without creating the possibility for the Constitutional Court to adopt, in accordance with the powers conferred upon it, such a final act that would meet the criteria of justice, the supremacy of the Constitution in the legal system would not be guaranteed and the administration of constitutional justice and the ensuring of constitutional lawfulness would be prevented; the powers of the Constitutional Court to administer constitutional justice and to ensure constitutional legality are inseparable from the imperatives of the constitutional principle of a state under the rule of law, inter alia, from the requirements of the protection of legitimate expectations, legal security, justice, and reasonableness (rulings of 19 June 2018, 16 April 2019, and 28 August 2020).

38. By this ruling of the Constitutional Court, the most important provisions of the Law on Local Self-Government (wording of 15 September 2008) and the Law on Elections to Municipal Councils (wording of 26 June 2014) relating to the elections and powers of municipal mayors were declared to be in conflict with the Constitution. It should be noted that these provisions of the Law on Local Self-Government (wording of 15 September 2008) and the Law on Elections to Municipal Councils (wording of 26 June 2014) are systematically related to a lot of other provisions of those laws.

38.1. Under Paragraph 1 of Article 107 of the Constitution, a legal act (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the legal act in question (or part thereof) is in conflict with the Constitution. As the Constitutional Court has repeatedly stated, any legal act (part thereof) adopted by the Seimas that is declared by a ruling of the Constitutional Court to be in conflict with the Constitution is removed from the legal system of Lithuania and may no longer be applied.

Thus, upon the entry into force of this ruling of the Constitutional Court, the most important provisions of the Law on Local Self-Government (wording of 15 September 2008) and of the Law on Elections to Municipal Councils (wording of 26 June 2014) relating to the elections and powers of municipal mayors, as well as most other provisions of these laws, will no longer be applicable.

38.2. It has been held in the jurisprudence of the Constitutional Court that, under the Constitution, having assessed, inter alia, what a legal situation might arise after a ruling of the Constitutional Court becomes effective, the Constitutional Court may determine the date of the official publication of that ruling; the Constitutional Court enjoys the constitutional power to establish also a later date of the official publishing (thus, also of entry into force) of its ruling, whereby a certain legal act (part thereof) was recognised as being in conflict with higher-ranking legal acts, inter alia (and, first of all), the Constitution, where, in the case the ruling of the Constitutional Court after its adoption were immediately officially published, a vacuum or other indeterminacies might appear in the legal regulation due to which certain values consolidated in and defended and protected by the Constitution could be violated in essence (inter alia, the rulings of 19 January 2005, 9 June 2011, and 28 August 2020). Therefore, the postponement of the official publication of a ruling of the Constitutional Court (inter alia, a ruling by which a certain law (or part thereof) is ruled to be in conflict with the Constitution) is a precondition stemming from the Constitution for avoiding certain consequences unfavourable to society and the state, as well as to human rights and freedoms, that might arise if the respective ruling of the Constitutional Court were officially published immediately after its public pronouncement at the hearing of the Constitutional Court and if it became effective on the day of its official publication (inter alia, the rulings of 19 January 2005, 6 February 2012, and 28 August 2020).

38.3. It should be mentioned that, under Paragraph 3 of Article 84 “The Publication and Entry into Force of the Acts of the Constitutional Court and Announcements of the President of the Constitutional Court” (wording of 14 May 2015), taking into account the specific circumstances of a particular case, the Constitutional Court may set another, a later, date for the publication of its ruling by which a certain legal act (part thereof) is declared to be in conflict with the Constitution or laws.

38.4. According to the Constitution and the Law on the Constitutional Court, after the official publication of this ruling of the Constitutional Court, most of the provisions of the Law on Local Self-Government (wording of 15 September 2008) and the Law on Elections to Municipal Councils (wording of 26 June 2014) will not apply from the date of the official publication of this ruling of the Constitutional Court.

Therefore, if the ruling of the Constitutional Court in this case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, there would occur a regulatory gap and uncertainty in the legal regulation of local self-government due to which the functioning of the system of local self-government and the administration of the state would be fundamentally disrupted.

38.5. In view of the fact that a certain period of time is necessary to remove the said gap and uncertainty in the legal regulation of local self-government, this ruling of the Constitutional Court must be officially published in the Register of Legal Acts on 3 May 2023.

39. In this context, it should be noted that, as mentioned before, in the absence of a relevant amendment to Article 119 of the Constitution in accordance with the procedure established by the Constitution, it is not allowed to establish by law a single-person institution of municipal authority and public administration (executive) (named, inter alia, the mayor) directly elected by the relevant territorial community, where that institution, inter alia, would be responsible for the direct implementation of laws, the decisions of the Government, and those of the municipal council.

Thus, should the legislature decide to establish such a single-person municipal institution, it would have to undertake a review of Article 119 of the Constitution. It should be noted that this should be carried out by the legislature before the entry into force of this ruling of the Constitutional Court.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56, and 84 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the provisions of Item 1 (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10138) of Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on Local Self-Government “[…] which is headed by the member of the municipal council – the mayor (hereinafter referred to as the mayor), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils (hereinafter referred to as the Law on Elections to Municipal Councils). The mayor shall be the head of the municipality who exercises the powers provided for by this Law and other laws” are in conflict with Paragraphs 1, 2, and 4 of Article 119 of the Constitution of the Republic of Lithuania.

2. To recognise that the provisions of Paragraph 2 (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10138) of Article 5 of the Republic of Lithuania’s Law on Local Self-Government “Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of the municipality, other heads of municipal establishments and services, state servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council”, insofar as, under these provisions, local government and public administration functions are performed by the mayor, are in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

3. To recognise that the provision “In the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote” of Paragraph 9 (wording of 14 February 2019, Register of Legal Acts, 20-02-2019, No 2745) of Article 13 of the Republic of Lithuania’s Law on Local Self-Governance is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution of the Republic of Lithuania.

4. To recognise that the provision “the mayor shall be directly elected for the term of the powers of a municipal council” of Paragraph 1 (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10138) of Article 19 of the Republic of Lithuania’s Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution of the Republic of Lithuania.

5. To recognise that the provision “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors” of Paragraph 1 (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10138) of Article 19 of the Republic of Lithuania’s Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution of the Republic of Lithuania.

6. To recognise that the provision “if they lose the citizenship of the Republic of Lithuania” of Paragraph 5 (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10138) of Article 19 of the Republic of Lithuania’s Law on Local Self-Government is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution of the Republic of Lithuania.

7. To recognise that Paragraph 7 (wording of 26 June 2014, Register of Legal Acts, 17-11-2016, No 10138) of Article 19 of the Republic of Lithuania’s Law on Local Self-Government is in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

8. To recognise that Paragraph 2 (as amended on 10 November 2020, Register of Legal Acts, 16-11-2016, No 113-4290) of Article 20 of the Republic of Lithuania’s Law on Local Self-Government (wording of 15 September 2008; Official Gazette Valstybės žinios, 2008, No 24013) is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution of the Republic of Lithuania.

9. To recognise that the provision “(except the member of the municipal council – the mayor)” of Paragraph 3 and Paragraph 4 of Article 1 of the Republic of Lithuania’s Law on Elections to Municipal Councils (wording of 26 June 2014, Register of Legal Acts, 11-07-2014, No 10139) is in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution of the Republic of Lithuania.

10. To recognise that the provision “and a citizen of the Republic of Lithuania who may be elected member of a particular municipal council may be elected the member of that council who is the mayor of that municipality” of Paragraph 2 (wording of 14 June 2018, Register of Legal Acts, 26-06-2018, No 10516) of Article 2 of the Republic of Lithuania’s Law on Elections to Municipal Councils is in conflict with Paragraph 2 of Article 119 of the Constitution of the Republic of Lithuania.

11. This ruling of the Constitutional Court of the Republic of Lithuania must be officially published in the Register of Legal Acts on 3 May 2023.

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

                                                                Giedrė Lastauskienė

                                                                Algis Norkūnas

                                                                Daiva Petrylaitė

                                                                Dainius Žalimas