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On the termination of the mandate of a member of the European Parliament, a member of a municipal council, or a mayor as a result of his/her election to the Seimas and without taking into account his/her will

The ruling of the Constitutional Court of the Republic of Lithuania of 28 May 2021

ON THE TERMINATION OF THE MANDATE OF A MEMBER OF THE EUROPEAN PARLIAMENT, A MEMBER OF A MUNICIPAL COUNCIL, OR A MAYOR AS A RESULT OF HIS/HER ELECTION TO THE SEIMAS AND WITHOUT TAKING INTO ACCOUNT HIS/HER WILL

Summary

By this ruling, the Constitutional Court, having examined the case subsequent to a petition of a group of members of the Seimas, recognised that the legal regulation entrenched in the Law on Elections to the Seimas, the Law on Elections to the European Parliament, and the Law on Elections to Municipal Councils, according to which a member of the European Parliament or of a municipal council elected to the Seimas automatically loses his/her mandate of the European Parliament or of a member of a municipal council, was in conflict with the Constitution.

Namely, the following was recognised to be in conflict with Paragraph 2 of Article 34, Paragraphs 2 and 3 of Article 59, and Paragraph 1 of Article 60 of the Constitution, as well as with the constitutional principle of a state under the rule of law:

– Article 931 of the Law on Elections to the Seimas (wording of 19 November 2015);

– Item 7 (wording of 30 June 2016) of Article 94 of the Law on Elections to the European Parliament, the provision of Paragraph 2 of Article 97 thereof “In the case of election of a member of the European Parliament to the Seimas of the Republic of Lithuania, the Central Electoral Commission shall, within 15 days from the emergence of this ground, recognise the lapse of the powers of a member of the European Parliament before the expiry of his/her term of office”;

– Item 13 of Paragraph 1 of Article 88 (wording of 14 January 2020) of the Law on Elections to Municipal Councils, the provision of Paragraph 2 (wording of 28 May 2020) of the same article “(except for the cases where he/she is elected a member of the Seimas of the Republic of Lithuania)”.

The Constitutional Court dismissed the part of the case concerning the compliance of the Law Amending Articles 51, 9, 10, 11, 15, 17, 18, 25, 26, 35, 37, 38, 39, 41, 43, 51, 55, 56, 61, 671, 89, 91, 92, and 97 of the Law (No I-2721) on Elections to the Seimas and Supplementing the Law with Article 931, in terms of the procedure of its adoption, with the Constitution, stating that the petitioner had doubts about the constitutionality of that law namely because of the fact that that law had been supplemented with Article 931, which was recognised to be in conflict with the Constitution in this ruling. As the said Article 931 of the Law on Elections to the Seimas will no longer be applicable from the day of the official publication of this ruling of the Constitutional Court, the Constitutional Court decided that the investigation into supplementing the Law on Elections to the Seimas with Article 931 in violation of the procedure of adopting legal acts would be meaningless; consequently, the matter for investigation disappeared in that part of the constitutional justice case.

In particular, the Constitutional Court recalled that the right of individuals, guaranteed in Paragraph 2 of Article 34 of the Constitution, to stand for election under the conditions laid down by law is an important constitutional right of individuals. The law may not establish any such requirements (conditions) that would distort or deny the requirements (conditions) established in the Constitution for a person who may stand for election. The democratic principles of elections to political representative institutions, as enshrined in the Constitution, arise, among others, from the constitutional foundations of the electoral right, which are explicitly consolidated in Article 34 of the Constitution, as well as from the implied imperatives of the constitutional principle of a state under the rule of law; the democratic principles of elections should be interpreted in the light of the said foundations and imperatives.

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

It was also noted in this ruling that it follows from Paragraph 2 of Article 34 of the Constitution that the legislature has a duty to establish such a legal regulation that would ensure, among others, the transparency of the electoral process and the publicity of information about persons exercising the passive electoral right that is relevant to the voters. During the electoral process, real possibilities must be created for persons implementing the active electoral right, who decide on the eligibility of a candidate to be a member of the Seimas, to receive information about the major facts of such person’s life, which may be of significance when he/she represents the interests of voters and handles public affairs. The Constitutional Court noted that, under the Constitution, information relevant to the voters about entities exercising the passive electoral right is also such information that a person seeking to be elected a member of the Seimas holds another office incompatible with the duties of a member of the Seimas, including in another political representative institution (in the European Parliament or a municipal council) to which he/she has been elected. Such information is public and easily accessible, so voters have the opportunity to take it into account, to form in a free and uncontrolled way an opinion about the candidate in question (e.g. in an election to the Seimas), including the seriousness of his/her intentions to hold the relevant elective office (e.g. the office of a member of the Seimas) and decide whether to vote in favour of the candidate or the list of candidates on which he/she is entered.

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

The Constitutional Court also held that, according to Paragraphs 2 and 3 of Article 59 of the Constitution, a person elected as a member of the Seimas may refuse to take an oath and simultaneously suffer unavoidable legal consequences – lose the mandate of a member of the Seimas, i.e. he/she has the right to decide whether to acquire the powers of a representative of the People by taking an oath or not to take an oath (take a conditional oath) and simultaneously lose the mandate of a member of the Seimas. Under Paragraph 1 of Article 60 of the Constitution interpreted in conjunction with Paragraphs 2 and 3 of Article 59 thereof, the principle of the incompatibility of the duties of a member of the Seimas with another office or job and the obligation arising from the duties of a member of the Seimas for a person elected as a member of the Seimas to resign from another office incompatible with the duties of a member of the Seimas or to terminate an employment relationship incompatible with the duties of a member of the Seimas does not mean that persons holding an office incompatible under the Constitution with the duties of a member of the Seimas (among others, of a member of the European Parliament or a member of the municipal council) do not have the right to seek to stand for election as members of the Seimas (i.e. that they do not have the passive electoral right in electing members of the Seimas), but rather that, if such a person holding an office incompatible with the duties of a member of the Seimas is elected to the Seimas, he/she must decide, before taking an oath of a member of the Seimas, whether to hold the office held by him/her (including the office of a member of the European Parliament or a member of the municipal council) or to acquire and begin to exercise the powers of a member of the Seimas.

When deciding on the compliance of Article 931 of the Law on Elections to the Seimas with the Constitution, the Constitutional Court stated that the said article establishes the grounds for early cessation of the powers of a member of the municipal council (inter alia, the mayor) or a member of the European Parliament – the election as a member of the Seimas or becoming a member of the Seimas by occupying the vacant seat of a member of the Seimas. According to the impugned legal regulation, a member of a municipal council (inter alia, the mayor) or a member of the European Parliament lost his/her mandate on the sole ground that the Central Electoral Commission had stated by means of its decision that the person was elected as a member of the Seimas or became a member of the Seimas by occupying the vacant seat of a member of the Seimas, i.e. the will of the person holding such a mandate was not taken into account. The Constitutional Court also noted that a member of a municipal council (inter alia, the mayor) or a member of the European Parliament, in all other cases, i.e. when wishing to hold another office incompatible with his/her mandate (except the office of a member of the Seimas, as mentioned above), had to notify the Central Electoral Commission in writing about the refusal of his/her mandate, and only on the basis of such a written declaration the Central Electoral Commission took a decision to recognise the early cessation of the powers of a member of a municipal council or a member of the European Parliament.

The Constitutional Court held that, according to the impugned legal regulation, enshrined in Article 931 of the Law on Elections to the Seimas, a member of a municipal council (inter alia, the mayor) or a member of the European Parliament, if he/she is elected as a member of the Seimas, does not have the right to decide, before taking the oath of a member of the Seimas, whether to hold the office, held by him/her, of a member of the municipal council, the mayor, or a member of the European Parliament or to acquire and begin to exercise of the powers of a member of the Seimas. At the same time, such a legal regulation aggravates the implementation of the right of persons holding the mandate of a member of a municipal council (inter alia, that of the mayor) or a member of the European Parliament to be elected members of the Seimas (i.e. aggravates the implementation of the passive electoral right), since, if they are elected to the Seimas, they lose their mandate irrespective of their will.

The Constitutional Court also noted that the impugned legal regulation should be assessed as based solely on the presumption that persons holding the position of a member of a municipal council (inter alia, the mayor) or a member of the European Parliament participating in elections to the Seimas are in themselves dishonest or that their intentions to obtain the mandate of a member of the Seimas are not serious. Such a legal regulation does not take into account the fact that the information on the fact that persons participating in elections to the Seimas hold the office of a member of a municipal council (inter alia, that of the mayor) or of a member of the European Parliament is public and easily accessible, and that voters have the opportunity, taking into account such information, to form in a free and uncontrolled way an opinion on the respective candidate participating in the elections, inter alia, on the seriousness of his/her intentions to hold the office of a member of the Seimas, and decide whether to vote for such a candidate or the list of candidates on which he/she is entered. Therefore, contrary to the assertions made by the representative of the party concerned, the impugned legal regulation is not necessary in order to prevent the deception of voters.

Taking this into account, the Constitutional Court held that the legal regulation entrenched in Article 931 of the Law on Elections to the Seimas had disregarded the imperative, arising from Paragraph 2 of Article 34 of the Constitution, not to establish such requirements (conditions) that would distort or deny the requirements (conditions) established in the Constitution for a person who may stand for election, as well as the requirement, arising from Paragraph 2 of Article 34 of the Constitution and the constitutional principle of a state under the rule of law, to ensure a fair electoral process by means of the legal regulation of elections, inter alia, the expression of the free will of citizens, among others, without the presumption that that the process of elections to the Seimas is unfair if it involves persons well known in society, inter alia, persons holding an office in another political representative institution, or that, inter alia, such persons are in themselves dishonest in participating in elections to the Seimas or that their intentions to obtain the mandate of a member of the Seimas are not serious. In addition, the legal regulation entrenched in Article 931 of the Law on Elections to the Seimas had denied the right of an elected member of the Seimas, which is implied by the provisions of Paragraphs 2 and 3 of Article 59 of the Constitution, to decide whether to acquire the powers of the representative of the People by taking an oath or not to take an oath (take a conditional oath) and simultaneously lose the mandate of a member of the Seimas; that legal regulation had also violated Paragraph 1 of Article 60 of the Constitution interpreted in conjunction with Paragraphs 2 and 3 of Article 59 thereof, according to which, namely before taking the oath of a member of the Seimas, a person elected as a member of the Seimas must resign from another office incompatible with the duties of a member of the Seimas, inter alia, those of a member of a municipal council or a member of the European Parliament.

Having held that the legal regulation laid down in the Law on Elections to the European Parliament and the Law on Elections to Municipal Councils, insofar as, under that legal regulation, after a member of the European Parliament or a member of a municipal council is elected as a member of the Seimas or after he/she occupies the vacant seat of a member of the Seimas, the Central Electoral Commission recognises the early cessation of the powers of the member of the European Parliament or the member of a municipal council, regardless of the will of that person, was substantially analogous to the legal regulation enshrined in Article 931 of the Law on Elections to the Seimas, the respective provisions of the Law on Elections to the European Parliament and the Law on Elections to Municipal Councils were also recognised, on the basis of the same arguments, to be in conflict with the same provisions of the Constitution.