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Case no 13/2018
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 7 OF ARTICLE 71 OF THE STATUTE OF THE
SEIMAS OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA AND ON THE COMPLIANCE OF THE RESOLUTION (No XIII-
1227) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 31 MAY 2018 AMENDING
THE RESOLUTION (No XIII-1036) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF
20 MARCH 2018 ON FORMING A SPECIAL INVESTIGATION COMMISSION OF THE
REPUBLIC OF LITHUANIA FOR AN INVESTIGATION INTO THE REASONABLENESS OF
THE MOTION SUBMITTED BY A GROUP OF MEMBERS OF THE SEIMAS OF THE
REPUBLIC OF LITHUANIA TO INSTITUTE IMPEACHMENT PROCEEDINGS AGAINST
ARTŪRAS SKARDŽIUS, A MEMBER OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA,
AND FOR DRAWING UP A CONCLUSION REGARDING THE GROUNDS FOR INSTITUTING
THE IMPEACHMENT PROCEEDINGS WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA AND THE STATUTE OF THE SEIMAS
18 December 2019, no KT76-N15/2019
Vilnius
The Constitutional Court of the Republic of Lithuania, composed of the Justices of the
Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė,
Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, and Dainius Žalimas
The court reporter – Daiva Pitrėnaitė
The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of
the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the
Constitutional Court of the Republic of Lithuania, at the hearing of the Constitutional Court on
27 November 2019, considered, under written procedure, constitutional justice case no 13/2018
subsequent to the petition (no 1B-16/2018) of a group of members of the Republic of Lithuania,
the petitioner, requesting an investigation into whether the resolution (No XIII-1227) of the
Seimas of the Republic of Lithuania of 31 May 2018 amending the resolution (No XIII-1036) of
2
the Seimas of the Republic of Lithuania of 20 March 2018 on forming a special investigation
commission of the Republic of Lithuania for an investigation into the reasonableness of the motion
submitted by a group of members of the Seimas of the Republic of Lithuania to institute
impeachment proceedings against Artūras Skardžius, a member of the Seimas of the Republic of
Lithuania, and for drawing up a conclusion regarding the grounds for instituting the impeachment
proceedings is in conflict with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on
the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated”
of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas of
the Republic of Lithuania (wording of 22 December 1998).
The Constitutional Court
has established:
I
The arguments of the petitioner
1. The petition of a group of members of the Seimas, the petitioner, requesting an
investigation into the compliance of the resolution (No XIII-1227) of the Seimas of 31 May 2018
amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March
2018 on forming a special investigation commission of the Republic of Lithuania for an
investigation into the reasonableness of the motion submitted by a group of members of the
Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras
Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion
regarding the grounds for instituting the impeachment proceedings (hereinafter also referred to as
the resolution of the Seimas of 31 May 2018) with Paragraph 3 of Article 71, the provisions “The
Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the
procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of
the Statute of the Seimas of the Republic of Lithuania (wording of 22 December 1998) (hereinafter
also referred to as the Statute of the Seimas) is based on the following arguments.
1.1. By the resolution (No XIII-1036) of the Seimas of 20 March 2018 on forming a special
investigation commission of the Seimas of the Republic of Lithuania for an investigation into the
reasonableness of the motion submitted by a group of members of the Seimas of the Republic of
Lithuania to institute impeachment proceedings against Artūras Skardžius, a member of the
Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds for
instituting the impeachment proceedings (hereinafter also referred to as the resolution of the
Seimas of 20 March 2018), the special investigation commission of the Republic of Lithuania for
an investigation into the reasonableness of the motion submitted by a group of members of the
3
Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras
Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion
regarding the grounds for instituting the impeachment proceedings (hereinafter referred to as the
Commission) was formed. By this resolution of the Seimas, the Commission was formed from
12 members under the general procedure established by the Statute of the Seimas according to the
principle of proportional representation of the political groups.
1.2. By the impugned resolution of the Seimas of 31 May 2018, one member was removed
from the Commission, but the number of members of the Commission was not changed and,
consequently, the proportion of the representation of the political groups was not altered. This
means that, following the adoption of the impugned resolution of the Seimas of 31 May 2018, the
composition of the Commission became unlawful as a result of the infringement of the procedure
laid down in the Statute of the Seimas for the formation of commissions of the Seimas. This
procedure should have applied not only when the Commission was set up for the first time, but
also when its composition was changed. Having adopted the resolution of the Seimas of 31 May
2018 without following the procedure, laid down in the Statute of the Seimas, for the formation of
commissions of the Seimas, one member of the Commission was removed from it without a legal
basis.
II
The arguments of the representative of the party concerned
2. In the course of the preparation of the case for the hearing of the Constitutional Court,
written explanations by Agnė Širinskienė, Chair of the Committee of the Seimas on Legal Affairs,
acting as the representative of the Seimas, the party concerned, were received, in which she
maintains that the impugned resolution of the Seimas of 31 May 2018 is not in conflict with the
Statute of the Seimas. The position of the representative of the party concerned is based on the
following arguments.
2.1. Referring to the provisions of the official constitutional doctrine set out in the
Constitutional Court’s ruling of 13 May 2004, the representative of the party concerned states that
the Seimas, having the discretion to set up its structural units, to determine their competences, to
formulate certain tasks for them, also has the discretion to determine their names, competences,
composition, relations between them, the duration of their activities, and to formulate certain tasks
for them; when establishing this, the Seimas is bound by the norms and principles of the
Constitution.
2.2. Under Article 76 of the Constitution, the structure and procedure of activities of the
Seimas are established by the Statute of the Seimas, which has the force of a law. A blanket norm
is set out in this article of the Constitution, which permits the Seimas to establish its own structure,
4
the procedure of its activities, procedures for the presentation of draft laws and other draft legal
acts, their deliberation and adoption, as well as the competences of other structural units of the
Seimas and their interrelations, and to regulate other issues of the functioning of the Seimas.
2.3. The adoption of the resolution of the Seimas of 20 March 2018 setting up the
Commission complied with the requirements of Article 232 of the Statute of the Seimas governing
the procedure for the formation of a special investigation commission: (1) the commission is set up
from members of the Seimas; (2) as a rule, the commission may not consist of more than
12 members; (3) members of the commission are proposed according to the procedure established
in Article 71 of this Statute by the majority of the Seimas and the minority of the Seimas; (4) when
setting up the commission, the Seimas simultaneously appoints the chair and deputy chair of the
commission, and sets the time limits of the execution of the investigation.
2.4. According to Paragraph 5 of Article 71 of the Statute of the Seimas, the Seimas must
vote for the full list of members of an ad hoc investigation commission. The Seimas, when
forming an ad hoc investigation commission of the Seimas, paid regard to the constitutional
imperative of the protection of the minority of the Seimas, and the minimum requirements, arising
from the Constitution, for the protection of the opposition of the Seimas, where the said imperative
and requirements imply, inter alia, that an ad hoc investigation commission of the Seimas may not
be formed only from the representatives of the political majority of the Seimas, without including
representatives from the minority (opposition) if they so request; therefore, it must be concluded
that the resolution of the Seimas of 20 March 2018 complied with the norms on proportional
representation.
2.5. Quotas meeting the norms for proportional representation of the political groups
(including those of the opposition) are normally discussed at the Conference of Chairs of the
Seimas at the beginning of the term of office of the Seimas or later if changes occur in the size of
the political groups. Subsequently, the said quotas serve as guidelines when the political groups
nominate candidates for members of the committees and commissions, including special
investigation commissions. As regards this matter, the representatives of the opposition who
participated in the meeting of the Conference of Chairs of the Seimas on 20 March 2018 in the
context of the approval of the number of members of the Commission (12 persons) did not ask any
additional questions and did not raise the issue of proportional representation, realising that they
would propose a proportional number of their political group representatives in the same way as
they do in other cases, i.e. in cases of setting up committees or standing commissions.
2.6. After the Commission had started its work, a draft amendment to the resolution of the
Seimas of 20 March 2018 was proposed to the Seimas based on the fact that members of the
Seimas in the performance of their duties must avoid conflicts of interest; the Seimas adopted it on
5
31 May 2018. This draft resolution of the Seimas, according to the representative of the party
concerned, was prepared after the press had reported that the son of the member of the
Commission Andrius Kubilius had been a member of the supervisory board of a company
managing another company competing with a company operating in Belarus; in the course of its
investigation, the Commission was to be interested in the latter company. According to the
representative of the party concerned, this indicated a potential conflict of interests of Seimas
member Andrius Kubilius in the Commission.
2.7. Paragraph 3 of Article 71 of the Statute of the Seimas and the provisions “The Seimas
shall vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall
be repeated” of Paragraph 5 of the same article apply for the formation of the entire commission.
As mentioned above, after the setting up of the Commission, after doubts had arisen about the
participation of one member of the Seimas in the further work of the Commission, a draft
amendment to the resolution of the Seimas of 20 March 2018 was submitted, the substance of
which was to propose the replacement of one member of the Commission rather than reforming
the Commission, forming it anew, or re-allocating the quotas to the political groups; therefore, the
Seimas followed the provision of Paragraph 7 of Article 71 of the Statute of the Seimas, under
which, in certain instances, the Seimas may establish another procedure for forming commissions,
however, these may not consist of representatives of one political group of the Seimas or one
committee of the Seimas.
2.8. When the draft amendment to the resolution of the Seimas of 20 March 2018 was
being submitted, the political group of the Homeland Union – Lithuanian Christian Democrats
received the proposal that it delegate another member to the Commission, but, according to the
transcript of the verbatim report of the morning sitting (No 180) of 31 May 2018 of the IV (spring)
session of the Seimas, the chair of this political group issued a political declaration, stating that
this political group would withdraw and would no longer participate in the work of all the present
and future impeachment, investigation, and other commissions organised by the majority of the
Seimas.
2.9. Thus, the impugned resolution of the Seimas of 31 May 2018 cannot be considered
unlawful, because it complied with the norms of proportional representation and allowed all the
political groups to participate in the work of the Commission, but the political group of the
Homeland Union – Lithuanian Christian Democrats did not make use of the possibility, provided
for in the provision of Paragraph 3 of Article 232 of the Statute of the Seimas, to propose another
candidate, and, as a result, one seat remained vacant in the Commission.
The Constitutional Court
holds that:
6
I
The impugned legal regulation and the factual circumstances surrounding its establishment
3. On 20 March 2018, the Seimas adopted the resolution (No XIII-1036) on forming a
special investigation commission of the Seimas of the Republic of Lithuania for an investigation
into the reasonableness of the motion submitted by a group of members of the Seimas of the
Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member
of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds
for instituting the impeachment proceedings.
By this resolution of the Seimas of 20 March 2018, the Commission was set up, consisting
of 12 members of the Seimas (Article 1), and its specific composition was approved; Seimas
member Andrius Kubilius (together with the other respective members of the Seimas) was
appointed a member of the said Commission (Article 2).
4. On 17 May 2018, the draft (No XIIIP-2154) of the impugned resolution of the Seimas
was registered in the Seimas, which proposed a change in the composition of the Commission by
removing from it one member, Seimas member Andrius Kubilius, belonging to the opposition
political group of the Homeland Union – Lithuanian Christian Democrats. No member of the
Commission replacing him was proposed by this draft resolution of the Seimas.
It should be noted that this draft (No XIIIP-2154) of the impugned resolution of the Seimas
does not specify the circumstances and reasons that led to the submission of this draft resolution.
As can be seen from the written explanations of the representative of the Seimas, the party
concerned, as well as from the transcript of the verbatim report of the evening sitting (No 177) of
24 May 2018 of the IV (spring) session of the Seimas, the draft (No XIIIP-2154) of the impugned
resolution of the Seimas was prepared following the publication in the press of the information on
the basis of which it was presumed that there was a potential conflict between public and private
interests of the member of the Commission Andrius Kubilius.
5. On 31 May 2018, the Seimas adopted the resolution (No XIII-1227) of the Seimas
amending the resolution (No XIII-1036) of the Seimas of the Republic of Lithuania of 20 March
2018 on forming a special investigation commission of the Republic of Lithuania for an
investigation into the reasonableness of the motion submitted by a group of members of the
Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras
Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion
regarding the grounds for instituting the impeachment proceedings, which is impugned in this
constitutional justice case.
Attention should be drawn to the fact that the title of the resolution of the Seimas of
31 May 2018 does not accurately reflect the title of the amended resolution of the Seimas of
7
20 March 2018 – after omitting the word “Seimas”, the special investigation commission was
named as a “special investigation commission of the Republic of Lithuania for an investigation
into the reasonableness of the motion submitted by a group of members of the Seimas of the
Republic of Lithuania to institute impeachment proceedings against Artūras Skardžius, a member
of the Seimas of the Republic of Lithuania, and for drawing up a conclusion regarding the grounds
for instituting the impeachment proceedings”.
5.1. The impugned resolution of the Seimas of 31 May 2018 prescribes:
“The Seimas of the Republic of Lithuania r e s o l v e s:
Article 1.
To amend Article 2 and set it out as follows:
‘Article 2.
To approve the Commission of the following composition:
(1) Rimas Andrikis;
(2) Arvydas Anušauskas;
(3) Eugenijus Gentvilas;
(4) Jonas Jarutis;
(5) Aušrinė Norkienė;
(6) Česlav Olševski;
(7) Mindaugas Puidokas;
(8) Viktoras Rinkevičius;
(9) Rimantė Šalaševičiūtė;
(10) Stasys Šedbaras;
(11) Agnė Širinskienė;
(12) no member appointed.’”
5.2. Thus, by the impugned resolution of the Seimas of 31 May 2018, the Commission was
not formed anew, but only a change in its composition was made: following the amendment of
Article 2 of the resolution of the Seimas of 20 March 2018, one of the members of the
Commission, Seimas member Andrius Kubilius, belonging to the opposition political group of the
Homeland Union – Lithuanian Christian Democrats, was removed from the Commission. No other
member of the Seimas was appointed instead of the removed member of the Seimas. The
remaining composition of the Commission remained unchanged, leaving 11 members instead of
12.
It should be noted that Article 1 of the resolution of the Seimas of 20 March 2018,
according to which the Commission comprised 12 members, was not amended by the impugned
resolution of the Seimas of 31 May 2018.
8
6. It should be mentioned that, Article 4 (wording of 29 May 2018) of the resolution of the
Seimas of 20 March 2018 tasked the Commission with carrying out the investigation by 25 June
2018 and with submitting to the Speaker of the Seimas a conclusion on the grounds for beginning
the impeachment proceedings, as well as a relevant draft resolution of the Seimas and other
relevant documents. The Commission prepared the conclusion and submitted the draft resolution
of the Seimas, as well as the other documents, on 20 June 2018. In this conclusion, the
Commission stated that the charges brought against Seimas member Artūras Skardžius in the
motion submitted by a group of members of the Seimas were unfounded and that there were no
grounds to begin impeachment proceedings against Seimas member Artūras Skardžius (Item 8).
On 30 June 2018, the Seimas adopted the resolution (No XIII-1425) on upholding the
conclusion of the special investigation commission of the Seimas of the Republic of Lithuania for
an investigation into the reasonableness of the motion submitted by a group of members of the
Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras
Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion
regarding the grounds for instituting the impeachment proceedings (hereinafter also referred to as
the resolution of the Seimas of 30 June 2018), by Article 1 whereof it was decided to uphold the
conclusion of the Commission. By Article 2 of the resolution of the Seimas of 30 June 2018, it was
recognised that the Commission had completed its work.
It is thus apparent from the resolution of the Seimas of 30 June 2018 that the Seimas
decided not to begin impeachment proceedings against Seimas member Artūras Skardžius.
7. It should be noted that the material of this constitutional justice case shows that, on
18 May 2018 (already after the draft (No XIIIP-2154) of the impugned resolution of the Seimas,
proposing that the composition of the Commission be changed by removing from it one member,
Seimas member Andrius Kubilius, had been registered in the Seimas on 17 May 2018), Seimas
member Ramūnas Karbauskis applied to the Chief Official Ethics Commission (Vyriausioji
tarnybinės etikos komisija (VTEK); hereinafter referred to as the VTEK) for an assessment of the
conduct of Seimas member Andrius Kubilius.
At its meeting of 30 May 2018, the VTEK decided not to open an investigation into the
compatibility of the conduct of Seimas member Andrius Kubilius with the provisions of the
Republic of Lithuania’s Law on the Coordination of Public and Private Interests in State Service
on the ground that the VTEK had no direct and obvious evidence to conclude that Andrius
Kubilius had declared in violation of the procedure and time limits laid down in laws the
circumstances giving rise to a conflict of interest. The VTEK decided to refer to the Commission
for Ethics and Procedures of the Seimas the part of the report of Ramūnas Karbauskis relating to a
possible situation of a conflict between public and private interests in the service of Seimas
9
member Andrius Kubilius (acting as a member of the Commission), as the VTEK had no power to
assess the compliance of the activities of a member of the Seimas with the provisions of the Statute
of the Seimas governing the obligation of a member of the Seimas to avoid conflicts of interest and
the procedure of the implementation of the obligation to withdraw.
At its meeting of 13 June 2018, the Commission for Ethics and Procedures of the Seimas,
having regard to the fact that, by the resolution of the Seimas of 31 May 2018, Seimas member
Andrius Kubilius had been removed from the Commission, decided not to open an investigation
into the conduct of Seimas member Andrius Kubilius.
II
The relevant legal regulation, laid down in the Statute of the Seimas, governing the
formation of commissions of the Seimas
8. In this constitutional justice case, the Constitutional Court is examining the compliance
of the resolution of the Seimas of 31 May 2018, which changed the composition of the
Commission, with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of
candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of
Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.
9. On 17 February 1994, the Seimas adopted the Statute of the Seimas, which entered into
force on 26 February 1994. The Statute of the Seimas has been amended and/or supplemented on
several occasions.
On 22 December 1998, the Seimas adopted the Statute of the Seimas amending the Statute
of the Seimas (wording of 17 February 1994, as subsequently amended and supplemented) and set
it out in its new wording. The Statute of the Seimas in its new wording entered into force on
1 February 1999.
10. Paragraph 3 of Article 25 of the Statute of the Seimas provides that, in order to resolve
short-term issues or issues of narrower scope, and for carrying out specific assignments, the
Seimas may, from among its members, form investigation, control, auditing, preparatory, drafting,
and other ad hoc commissions.
10.1. Paragraph 1 of Article 71 of the Statute of the Seimas provides, among other things,
that, having acknowledged the necessity, the Seimas may form ad hoc investigation, control,
revision, preparatory, editorial, and other commissions to examine and prepare or fulfil other
assignments of the Seimas.
10.2. According to Paragraph 2 of Article 231 (wording of 13 October 2011) of the Statute
of the Seimas, if the motion to institute impeachment proceedings has been submitted by a group
consisting of not less than one-fourth of all of the members of the Seimas, the Seimas sets up a
special investigation commission to investigate the validity of the submitted proposals to institute
10
impeachment proceedings and to prepare a conclusion concerning the grounds for instituting
impeachment proceedings (hereinafter also referred to as a special investigation commission).
10.3. It is thus apparent from the provisions of Paragraph 3 of Article 25, Paragraph 1 of
Article 71, and Paragraph 2 of Article 231 (wording of 13 October 2011) of the Statute of the
Seimas that a special investigation commission is an ad hoc commission of the Seimas, which
performs the specific functions – investigates the validity of the submitted proposals to institute
impeachment proceedings and prepares a conclusion concerning the grounds for instituting
impeachment proceedings.
11. The Statute of the Seimas also regulates the procedure for the formation of ad hoc
commissions of the Seimas, inter alia, that of the formation of special investigation commissions
of the Seimas.
11.1. In the context of this constitutional justice case, it should be noted that the setting up
of a special investigation commission as an ad hoc commission of the Seimas performing specific
functions (an investigation into the validity of the submitted proposals to institute impeachment
proceedings and the preparation of a conclusion concerning the grounds for instituting
impeachment proceedings) is subject both to the general requirements, laid down in Article 71,
titled “Formation of Commissions”, of the Statute of the Seimas, for the procedure for the
formation of commissions of the Seimas, and to the special requirements enshrined in Article 232,
titled “Procedure for Setting up a Special Investigation Commission”, of the Statute of the Seimas.
11.1.1. Article 71 of the Statute of the Seimas, inter alia, prescribes:
“[…]
3. The number of commission members shall be established first, when forming the
commission. The norms of the proportional representation of the political groups of the Seimas
and the time limit for the nomination of candidates for commission membership shall be
established subsequently.
4. Should the submitted list of candidates for commission membership prove to be
insufficient, the political groups may each verbally suggest an additional candidate during a
meeting, after which each member of the Seimas may do likewise, until the required number of
candidates is attained.
5. Each of the nominated candidates must agree verbally and, if not present at the meeting,
submit a written agreement to work in the commission. The Seimas shall vote on the list of
candidates thus obtained. Should it fail to be approved, the procedure shall be repeated.
6. When candidates for commission membership are proposed during a sitting of the
Seimas not according to pre-established norms and where at least two members of the Seimas
express doubt regarding any of the candidates, such a candidate shall be voted on individually. If,
11
during a sitting of the Seimas, the number of commission candidates proposed at a meeting
exceeds the established number of commission members and all of the proposed candidates agree
to work in the commission, an open-ballot vote shall be taken with the list of candidates included
on the ballots.
7. In certain instances, the Seimas may establish another procedure for forming
commissions; however, these may not consist of representatives of one political group or one
committee.”
11.1.2. Article 232 of the Statute of the Seimas prescribes:
“1. A special investigation commission shall be set up from members of the Seimas.
2. As a rule, the commission may not consist of more than 12 members.
3. Members of the commission shall be proposed according to the procedure established in
Article 71 of this Statute by the majority of the Seimas and the minority of the Seimas.
4. When setting up the commission, the Seimas shall simultaneously appoint the chair and
deputy chair of the commission, and shall set the time limits of the execution of the investigation.”
11.1.3. Interpreting in a systemic manner Paragraph 3 of Article 71, the provisions “The
Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the
procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of
the Statute of the Seimas, it should be noted in the context of this constitutional justice case that,
under the legal regulation established therein, when setting up a special investigation commission,
first the number of commission members is determined, then the norms of the proportional
representation of the political groups in the Seimas (thus, the norms regarding both the majority of
the Seimas and the minority of the Seimas) and the time limit for proposing candidates to members
of the commission are established; the candidates are proposed by both the majority of the Seimas
and the minority of the Seimas, and when the Seimas votes for the candidates proposed by the
majority and the minority of the Seimas, the entire list of members of the commission so formed is
voted on and, if the list is not approved, the procedure for appointing members of the commission
is re-launched and repeated by using the same method.
11.1.4. Thus, it is clear from Paragraph 3 of Article 71, the provisions “The Seimas shall
vote on the list of candidates thus obtained. Should it fail to be approved, the procedure shall be
repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the
Seimas that, under the legal regulation laid down therein, in setting up a special investigation
commission, the said procedures must be followed in order, and one of these procedures is the
procedure for proposing candidates for the members of the commission, in which both the majority
of the Seimas and the minority of the Seimas must participate.
12
11.2. As regards the aspect relevant to this constitutional justice case, it needs to be
mentioned that Paragraph 6 of Article 71 of the Statute of the Seimas provides that, when
candidates for commission membership are proposed during a sitting of the Seimas not according
to pre-established norms and where at least two members of the Seimas express doubt regarding
any of the candidates, such a candidate is voted on individually; if, during a sitting of the Seimas,
the number of commission candidates proposed at a meeting exceeds the established number of
commission members and all of the proposed candidates agree to work in the commission, an
open-ballot vote is taken with the list of candidates included on the ballots.
It is thus apparent from Paragraph 6 of Article 71 of the Statute of the Seimas that, under
the legal regulation laid down therein, when candidates for commission membership are proposed
during a sitting of the Seimas not according to pre-established norms and where at least two
members of the Seimas express doubt regarding any of the candidates, commissions of the Seimas
are formed in a manner different from that laid down in Paragraphs 3 and 5 of Article 71 of the
Statute of the Seimas, inter alia, by voting not on the full list of commission members, but on
individual candidates.
11.3. As regards the aspect relevant to this constitutional justice case, it should also be
noted that, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may, “in
certain instances”, establish another procedure for forming commissions, however, these may not
consist of representatives of one political group or one committee.
Thus, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may
establish a procedure for forming commissions that is different from that established in
Paragraphs 3–6 of Article 71 of the Statute of the Seimas. It should be noted that neither
Paragraph 7 of Article 71 of the Statute of the Seimas nor other provisions of the Statute of the
Seimas specify in detail in which cases such a different procedure for the formation of
commissions may be established and do not provide in which legal form (by means of which legal
act), under which procedures, and which specific rules for the formation of commissions may be
established by the Seimas.
12. In the context of the constitutional justice case, it should also be noted that neither
Articles 71 and 232 of the Statute of the Seimas nor other provisions of the Statute of the Seimas
contain a specific legal regulation that would provide for the possibility of changing the
composition of a special investigation commission.
13. The provisions of the Statute of the Seimas regulating the legal status of the political
structural units of the Seimas – political groups, inter alia, the opposition political groups, as well
as the minority of the Seimas – are also relevant in this constitutional justice case.
13
13.1. Article 26 of the Statute of the Seimas provides, inter alia, that members of the
Seimas may form themselves into political groups according to the procedure established by this
Statute for implementing their political goals; this Statute establishes the rights of the political
groups of the members of the Seimas (Paragraph 1); the members of the Seimas who have not
been registered in political groups are considered as members of a group of the non-attached
members of the Seimas; the group of the non-attached members of the Seimas is granted all of the
rights of a political group provided for in this Statute (Paragraph 3).
13.2. Article 40 of the Statute of the Seimas provides that the political groups of the Seimas
whose total number of the members is more than half of the members of the Seimas and that have
signed a joint action declaration or coalition government agreement are considered the majority of
the Seimas (Paragraph 1); opposition and other political groups that do not belong to the majority
of the Seimas and the group of the non-attached members of the Seimas are considered the
minority of the Seimas (Paragraph 2).
13.3. Article 41 of the Statute of the Seimas provides that the political groups of the
members of the Seimas or their coalitions that disagree with the government programme may
declare themselves opposition political groups (Paragraph 1); the political groups or their
coalitions that proclaim in the Seimas the political declarations wherein the provisions
distinguishing them from the majority of the Seimas are laid down are considered opposition
political groups (Paragraph 2).
In this context, it should be noted that Paragraph 4 of Article 41 of the Statute of the
Seimas enshrines the requirement of the protection of the parliamentary opposition. According to
this provision of the Statute of the Seimas, opposition political groups and their coalitions are
guaranteed all the rights of political groups and coalitions, as provided for in the Statute of the
Seimas; these rights must not be restricted under any pretext.
III
The provisions of the Constitution and the official constitutional doctrine
14. In this constitutional case, the Constitutional Court examines whether the resolution of
the Seimas of 31 May 2018, by which the composition of the special investigation commission for
an investigation into the reasonableness of the motion submitted by a group of members of the
Seimas to institute impeachment proceedings against Artūras Skardžius, a member of the Seimas,
and for drawing up a conclusion regarding the grounds for instituting the impeachment
proceedings, is in conflict with the Statute of the Seimas.
15. The Constitutional Court has noted that impeachment is a special parliamentary
procedure in which the highest state officials referred to in Article 74 of the Constitution are
removed from office; also, the mandate of a member of the Seimas may be revoked under the
14
impeachment procedure (the Constitutional Court’s rulings of 15 April 2004 and 25 May 2004);
the purpose of impeachment proceedings is to resolve the issue of constitutional liability of the
persons referred to in Article 74 of the Constitution (inter alia, the Constitutional Court’s rulings
of 11 May 1999 and 24 February 2017, and its conclusion of 22 December 2017); impeachment is
carried out by the Seimas (the Constitutional Court’s rulings of 11 May 1999, 25 January 2001,
and 15 April 2004).
It needs to be noted that, as stated in the Constitutional Court’s ruling of 24 February 2017,
under the Constitution, only the Seimas, while exercising its constitutional powers to carry out
impeachment, may take a decision to begin impeachment proceedings against a specific person;
under the Constitution, impeachment proceedings begin only after the Seimas adopts a resolution
on the beginning in the Seimas of impeachment proceedings against a concrete person.
In its conclusion of 19 December 2017, when interpreting the issues relating to the
beginning of impeachment proceedings in the Seimas, the Constitutional Court held that, inter
alia, actions preceding the beginning of impeachment, i.e. before the Seimas adopts a resolution
on the beginning in the Seimas of impeachment proceedings against a concrete person (where such
actions include, inter alia, the initiative of members of the Seimas to begin impeachment or the
investigation of the reasonableness of the charges brought by them in a commission formed by the
Seimas or in another structural unit of the Seimas), do not constitute a stage of impeachment
proceedings; these actions preceding the beginning of impeachment is a parliamentary procedure
that cannot be regarded as a legal process stricto sensu: in the course of such a parliamentary
procedure, the Seimas does not decide on the application of constitutional liability of a person, but
only whether there is a basis for beginning impeachment.
16. The Constitutional Court has held that, under Article 74 of the Constitution, the
establishment of the procedure for impeachment proceedings is also within the competence of the
Seimas: it must define it in the Statute of the Seimas (the Constitutional Court’s rulings of 11 May
1999 and 25 January 2001).
In view of the fact that, as mentioned above, the actions preceding the beginning of
impeachment is a parliamentary procedure, it should be noted in the context of this constitutional
justice case that the Constitution, inter alia, Article 74 thereof, requires that the Statute of the
Seimas regulate, inter alia, the actions preceding the beginning of impeachment, i.e. before the
Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a
concrete person, among other things, that the Statute of the Seimas regulate the procedure for the
formation of a commission of the Seimas investigating the validity of the charges brought against a
specific person.
15
Article 76 of the Constitution, which provides that the structure and procedure of activities
of the Seimas is established by the Statute of the Seimas, which has the force of a law, is therefore
relevant in this constitutional justice case.
16.1. The Constitutional Court has stated that, according to Article 76 of the Constitution,
the structure and procedure of work of one of the state authorities, the Seimas, is established by the
Statute of the Seimas, having the force of a law; a blanket norm is set out in this article of the
Constitution, which permits the Seimas to establish its own structure, the procedure of its
activities, procedures for the presentation of draft laws and other draft legal acts, their deliberation
and adoption, as well as the competence of other structural units of the Seimas and their
interrelations, and to regulate other issues of the functioning of the Seimas (the Constitutional
Court’s rulings of 30 March 2000 and 2 May 2012). Thus, the Constitution consolidates the
discretion of the Seimas in this area; at the same time, it needs to be noted that the Seimas, when
establishing its structure and procedure of activities, must not violate the principles and norms of
the Constitution (the Constitutional Court’s rulings of 25 January 2001 and 2 May 2012); the
established structure and procedure of activities of the Seimas must be such as to enable the
Seimas, the representation of the People, to perform its constitutional functions (the Constitutional
Court’s ruling of 13 May 2004).
16.2. It is impossible to interpret the provision “The structure and procedure of activities of
the Seimas shall be established by the Statute of the Seimas” of Article 76 of Constitution only
linguistically, i.e. as meaning that the powers of the structural units of the Seimas may be
established only in the Statute of the Seimas (the Constitutional Court’s rulings of 13 May 2006,
4 April 2006, and 30 December 2015). Certain questions linked with the formation of the
structural units of the Seimas, the establishment of their competences, the formation of their
composition, or the formulation of tasks to them may be decided by means of substatutory legal
acts of the Seimas; such substatutory legal acts of the Seimas may not be in conflict with laws, as
well as with the Statute of the Seimas (the Constitutional Court’s rulings of 13 May 2006 and
4 April 2006).
17. Taking into account that the Constitution is an integral act (Paragraph 1 of Article 6 of
the Constitution), it needs to be noted in the context of this constitutional justice case that
Article 76 of the Constitution, according to which the Statute of the Seimas, which has the force of
a law, establishes the structure and procedure of activities of the Seimas, cannot be interpreted in
isolation from the other norms and principles of the Constitution, inter alia, from the constitutional
principle of a state under the rule of law and the concept of democracy, which is enshrined in the
Constitution.
16
17.1. The Constitutional Court has held on more than one occasion that the constitutional
principle of a state under the rule of law is an especially broad constitutional principle and
comprises a wide range of interrelated imperatives; the content of the said principle should be
revealed by taking into account the content of various other constitutional principles such as the
supremacy of the Constitution, the sovereignty of the People, democracy, responsible governance,
the limitation of the scope of powers, and the service of state institutions to the people (the
Constitutional Court’s rulings of 13 December 2004, 17 November 2011, and 15 February 2019).
Thus, the constitutional principle of a state under the rule of law is related, inter alia, with other
constitutional principles such as the sovereignty of the People and democracy (the Constitutional
Court’s ruling of 15 February 2019).
17.1.1. The provisions of Article 1 of the Constitution, as well as the principle of a state
under the rule of law, which is established in the Constitution, determine the main principles of the
organisation and activities of the state power of the State of Lithuania (the Constitutional Court’s
rulings of 18 October 2000, 25 January 2001, and 29 March 2012); the provision of Article 1 of
the Constitution that the State of Lithuania is democratic implies, inter alia, that the supremacy of
the Constitution, the democratic decision-making process, and political pluralism must be ensured
in the state (the Constitutional Court’s ruling of 19 September 2002); the majority principle is
among the democratic principles of decision making (the Constitutional Court’s rulings of 22 July
1994, 4 April 2006, and 2 March 2018); the multi-party system creates the preconditions for
ensuring political pluralism (the Constitutional Court’s ruling of 29 March 2012).
17.1.2. The Constitutional Court has also noted that the Constitution also enshrines
parliamentary democracy; the model of parliamentary democracy consolidated in the Constitution
is rational and moderate (the Constitutional Court’s decisions of 21 November 2006 and
16 January 2014, and its ruling of 30 December 2015).
The Constitutional Court has also stated on several occasions that, in the exercise of its
constitutional powers, the Seimas fulfils the classical functions of the parliament of a democratic
state under the rule of law (inter alia, the Constitutional Court’s rulings of 13 May 2004,
30 December 2015, and 16 May 2019). The functions of the Seimas as the representation of the
People of a democratic state under the rule of law are constitutional values; under the Constitution,
the legislature and other law-making entities may not establish any such legal regulation that
would deny the constitutional functions of the Seimas or would restrict the possibilities of
performing them, since thereby the Seimas, the representation of the People, would be hindered
from effective functioning in the interests of the People and the State of Lithuania (inter alia, the
Constitutional Court’s rulings of 13 May 2004, 13 May 2010, and 16 May 2019).
17
17.1.3. As emphasised by the Constitutional Court, under the Constitution, Lithuania is a
pluralistic democracy (the Constitutional Court’s ruling of 21 December 2006, its conclusion of
22 December 2017, and its ruling of 16 May 2019); the necessary element of pluralistic democracy
is the recognition of the parliamentary opposition (the Constitutional Court’s rulings of 25 January
2001 and 4 April 2006, and its conclusion of 22 December 2017).
The Constitutional Court has noted that the Constitution presupposes the defence of the
parliamentary minority and the minimum requirements for the protection of the opposition of the
Seimas (the Constitutional Court’s rulings of 26 November 1993, 25 January 2001, and 4 April
2006); the Statute of the Seimas must lay down guarantees for the functioning of the opposition
(the Constitutional Court’s ruling of 25 January 2001).
17.1.4. In the context of this constitutional justice case, it should be noted that, under the
Constitution, Lithuania is a pluralistic parliamentary democracy, whose conditio sine qua non is
the parliamentary minority, inter alia, the parliamentary opposition. It should be emphasised that
the mission of the parliamentary minority, inter alia, that of the parliamentary opposition, is to
reflect the diversity of political views in parliament, thus ensuring political pluralism in the
parliament of a democratic state under the rule of law and creating the preconditions for such a
parliament to fulfil its functions; the mission of the parliamentary opposition is, inter alia, to
propose an alternative political programme to the parliamentary majority and the political
decisions based on it, to oversee the political activities of the parliamentary majority, inter alia, to
criticise it.
At the same time, it should be noted that each member of the Seimas represents the whole
of the People; when fulfilling his/her constitutional obligation to represent the People, a member of
the Seimas participates in performing all constitutional functions of the Seimas and exercises all
powers of a member of the Seimas (the Constitutional Court’s ruling of 1 July 2004 and its
conclusion of 19 December 2017). It should also be noted that the free mandate of a member of the
Seimas must be used in such a way that the Seimas could act effectively in the interests of the
People and the State of Lithuania, and that it could properly discharge its constitutional obligation
(the Constitutional Court’s conclusions of 27 October 2010, 19 December 2017, and 22 December
2017); in discharging their functions and implementing state authority, members of the Seimas
must act in the interests of the People and the State of Lithuania, not in their personal or group
interests, and not make use of their status in order to gain personal advantage either for
themselves, persons close to them, or other persons (the Constitutional Court’s conclusions of
27 October 2010, 3 June 2014, and 19 December 2017).
It should also be noted that participation in the work of the Seimas is a constitutional duty
and at the same time a right of a member of the Seimas (the Constitutional Court’s decision of
18
10 February 2005). In this context, it should also be noted that members of the Seimas, inter alia,
those belonging to the parliamentary minority (inter alia, those of the parliamentary opposition),
must exercise their rights and all the powers of a member of the Seimas responsibly, contributing
to the effective implementation by the Seimas of the functions of the parliament of a democratic
state under the rule of law.
17.1.5. In the context of this constitutional justice case, it should be noted that the
Constitution, inter alia, the principles of the organisation and operation of the State of Lithuania
and the concept of a pluralistic parliamentary democracy, which are implied by the constitutional
principle of a state under the rule of law, require, in accordance with Article 76 of the Constitution,
the establishment of such a structure and procedure of activities of the Seimas that would ensure
the effective protection of the rights of the parliamentary minority, inter alia, those of the
parliamentary opposition, and guarantees for its activities. This means, inter alia, that the principle
of proportional representation must be ensured in the formation of the structural units of the
Seimas (inter alia, committees and commissions of the Seimas), and that the composition of such
structural units of the Seimas, inter alia, changes in the said composition, must not depend solely
on the discretion of the parliamentary majority.
It should be noted that, as stated by the Constitutional Court, the Seimas, when it sets up ad
hoc investigation commissions, must also respect the constitutional imperative for the protection of
the rights of the minority of the Seimas and the minimum requirements, stemming from the
Constitution, for the protection of the opposition of the Seimas; these requirements presuppose,
inter alia, that ad hoc investigation commissions of the Seimas cannot be composed solely of
representatives of the political majority of the Seimas, without involving representatives of the
minority (opposition) of the Seimas if they so wish (the Constitutional Court’s ruling of 4 April
2006). In the context of this constitutional justice case, it should be noted that, under the
Constitution, inter alia, Article 76 thereof, and the constitutional principle of a state under the rule
of law, the composition of an ad hoc investigation commission of the Seimas, inter alia, of a
commission of the Seimas set up before the beginning of impeachment proceedings in order to
investigate the reasonableness of charges brought against a specific person, cannot be changed
solely at the discretion of the parliamentary majority in the absence of clear and constitutionally
justified reasons. Such reasons could include, inter alia, the situation where a member of an ad hoc
investigation commission of the Seimas, inter alia, of a commission of the Seimas set up before
the beginning of impeachment proceedings in order to investigate the reasonableness of charges
brought against a specific person, in the exercise of his/her functions, uses the free mandate of a
member of the Seimas not in the interests of the People and of the State of Lithuania, but uses that
mandate, inter alia, in his/her own personal or group interests.
19
17.1.6. In this context, it should be mentioned that one of the methods of the parliamentary
activities of the opposition based on the views and political objectives of the opposition could
consist of demonstrative non-participation by members of the Seimas in meetings of the Seimas, of
the committees of the Seimas, or of other units to which they were appointed as members in
accordance with the procedure laid down in the Statute of the Seimas, i.e., under the Constitution,
obstruction as a type of political protest and a method of parliamentary activity in an attempt to
prevent the adoption of a decision that is not acceptable to the minority may, in certain situations,
be regarded as a rather important reason for not attending such sittings unless such non-attendance
is regular (the Constitutional Court’s ruling (no KT26-N13/2016) of 5 October 2016). In the
context of this constitutional justice case, it should be noted that one of the methods of
parliamentary activity may include the refusal of the members of the Seimas belonging to the
parliamentary minority, inter alia, the parliamentary opposition, to take part in the work of ad hoc
structural units of the Seimas (inter alia, in the work of ad hoc investigation commissions of the
Seimas), thus expressing a political protest that, in their view, the decisions of the parliamentary
majority unjustifiably restrict the rights and guarantees of the functioning of the parliamentary
minority, inter alia, those of the parliamentary opposition. It should also be noted that the above-
mentioned methods of parliamentary activity do not, in themselves, constitute an obstacle to the
exercise by the Seimas of its functions as the parliament of a democratic state under the rule of
law.
17.2. The Constitutional Court has held on more than one occasion that legal certainty and
clarity is one of the essential elements of the constitutional principle of a state under the rule of
law, which implies that any legal regulation is subject to certain mandatory requirements: a legal
regulation must be clear and harmonious; legal norms must be formulated precisely and may not
contain any ambiguities; the consistency and internal coherence of the legal system must be
ensured; legal acts may contain no provisions simultaneously regulating the same social
relationships in a different manner (inter alia, the Constitutional Court’s rulings of 30 May 2003,
13 December 2004, and 15 February 2013).
The constitutional principle of a state under the rule of law implies various requirements
for law-making entities, including, inter alia, the fact that law-making entities are allowed to pass
legal acts only without exceeding their powers; legal acts must be passed in accordance with the
established procedural law-making requirements, including the requirements established by the
law-making entity itself (inter alia, the Constitutional Court’s rulings of 13 December 2004, 8 July
2016, and 29 June 2018).
The Constitutional Court has held more than once that the principle of a state under the rule
of law entrenched in the Constitution also implies the hierarchy of legal acts, inter alia, the fact
20
that substatutory legal acts may not be in conflict with laws, constitutional laws, and the
Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory
legal act is an act of the application of the norms of a law irrespective of whether that act has one-
off (ad hoc) application or permanent validity (inter alia, the Constitutional Court’s rulings of
13 August 2007, 20 February 2013, and 29 June 2018).
As the Constitutional Court has held, the fact that the Seimas does not comply with the
Constitution and the Statute of the Seimas in the course of adopting substatutory legal acts means
that the constitutional principle of a state under the rule of law, which implies the hierarchy of
legal acts, is also violated (the Constitutional Court’s rulings of 20 February 2013 and 27 April
2016).
IV
The European standards for the protection of parliamentary opposition
18. The provisions laid down in the Council of Europe’s acts relating to the role of the
parliamentary opposition in democratic processes, the establishment of its rights and obligations
are relevant in this constitutional justice case.
18.1. The Parliamentary Assembly of the Council of Europe in a number of its acts has
highlighted the importance of the parliamentary opposition.
18.1.1. In its Resolution 1154 (1998) of 20 April 1998 on the democratic functioning of
national parliaments, the Parliamentary Assembly of the Council of Europe expressed its belief
that member parliaments should give the opposition a status enabling it to play a responsible and
constructive role, inter alia, by being allowed to secure the setting up of a committee
(commission) of enquiry (point 6.4).
18.1.2. In its Resolution 1547 (2007) of 18 April 2007 on state of human rights and
democracy in Europe, the Parliamentary Assembly of the Council of Europe recalled that since the
beginning of European integration the right to form a political opposition has been considered an
essential element of a genuine democracy; however, opposition parties and their members cannot
only ask for rights and means, but should also show responsibility and willingness to use them and
make their best efforts to enhance the efficiency of the parliament as a whole; the opposition
should not restrict itself to only carrying out its natural but perhaps insufficient role of criticism;
the parliamentary majority, however, also has the responsibility to respect the right of the minority
to dissent from the majority’s opinion and to promote alternative policies (point 78).
18.1.3. On 23 January 2008, the Parliamentary Assembly of the Council of Europe adopted
Resolution 1601 (2008) on procedural guidelines on the rights and responsibilities of the
opposition in a democratic parliament (hereinafter referred to as Resolution 1601 (2008)), which
calls on the Member States to develop common standards and practices aimed at promoting a free
21
and pluralist parliamentary democracy (point 2). A political opposition in and outside parliament is
an essential component of a well-functioning democracy (point 3). The Procedural guidelines on
the rights and responsibilities of the opposition in a democratic parliament, which were adopted by
this resolution, note that the opposition must participate in parliamentary committees’
(commissions’) work (point 2.6) and that any committee, permanent or not, must be composed on
the basis of proportional representation (point 2.6.2).
18.2. In the context of this constitutional justice case, mention should also be made of the
provisions of the documents of the European Commission for Democracy through Law (the
Venice Commission), acting as an advisory body to the Council of Europe on constitutional
matters, which reveal the role of the parliamentary opposition.
18.2.1. At its 84th Plenary Session, which took place on 15–16 October 2010, the Venice
Commission adopted the Report on the role of the opposition in a democratic parliament
(hereinafter referred to as the Report). The report was drafted in response to the invitation by the
Parliamentary Assembly of the Council of Europe, set out in point 11 of Resolution 1601 (2008),
to “undertake a study on the role of the opposition in a democratic society”.
Mention should be made of the following provisions of the Report that are relevant to this
constitutional justice case:
– for opposition party groups a particularly important principle is that of proportional
representation – in the parliamentary committees, the allocation of positions, speaking time,
distribution of administrative and financial resources, etc.; the principle of proportional
representation is an important instrument for ensuring opposition and minority rights (points 63
and 66);
– the main principle in any parliamentary democracy is that decisions are taken by majority
vote; however, the minority should always be allowed to participate (point 102);
– there are certain categories of parliamentary opposition and minority rights that are of
particular importance and should be generally recognised, inter alia, such as procedural rights of
participation or protection against persecution (point 169).
18.2.2. At its 119th Plenary Session, which took place on 21–22 June 2019, the Venice
Commission adopted its Opinion, titled “Parameters on the Relationship between the
Parliamentary Majority and the Opposition in a Democracy: a Checklist” (hereinafter referred to as
the Opinion), updating the Report, adopted in 2010.
In the context of this constitutional justice case, the following provisions of the Opinion
should be mentioned:
22
– in the absence of a genuine political pluralism (which involves the existence of
independent and sufficiently strong political parties, free media, fair elections, etc.), the legal
guarantees for the opposition in Parliament will remain a dead letter (point 9);
– the most fundamental rules on parliamentary opposition and minority rights should
preferably be regulated in a form that the majority cannot alter at its own discretion (point 33);
– it is important that the opposition is involved in the decisions related to the withdrawal of
mandates (point 56);
– proportional representation will be useless if all important procedural decisions
concerning the functioning of Parliament are taken by the Speaker alone or by a simple majority in
Parliament; therefore, representatives of the opposition should have a say in the collective bodies
of Parliament, which should have sufficient powers in such procedural matters (point 88);
– the principle of proportionate representation is fully applicable to parliamentary inquiry
committees (commissions), which however does not preclude creating a parliamentary inquiry
committee (commission) where the opposition members will be in a majority or where such a
committee (commission) will be chaired by an opposition MP (point 133).
19. In the context of this constitutional justice case, it should be mentioned that the Grand
Chamber of the European Court of Human Rights, in accordance with Article 10 of the
Convention for the Protection of Human Rights and Fundamental Freedoms, which provides for
freedom of expression, in its judgment of 17 May 2016, delivered in the case of Karácsony and
others v Hungary (nos 42461/13 and 44357/13) concerning the freedom of expression of members
of the opposition, noted that the Parliamentary Assembly of the Council of Europe had stressed in
Resolution 1601 (2008) the need for equal treatment of all MPs; therefore, the rules concerning the
internal operation of Parliament should not serve as a basis for the majority abusing its dominant
position vis-à-vis the opposition; the protection of the parliamentary minority from abuse by the
majority is particularly important (point 147).
20. In the context of this constitutional justice case, mention should also be made of the
judgment, delivered on 3 May 2016 by the Second Senate of the German Federal Constitutional
Court in the Organstreit proceedings (dispute between constitutional organs) on minority and
opposition rights in the German Bundestag. This judgment states that:
– the Basic Law of the Federal Republic of Germany contains a general constitutional
principle of effective opposition (verfassungsrechtlicher Grundsatz effektiver Opposition), which
has been further defined by the case law of the German Federal Constitutional Court; the
constitutional protection of the opposition is rooted in the principle of democracy, enshrined in the
Basic Law; the formation and exercise of an organised political opposition is constitutive of the
23
free and democratic basic order, as they ensure competition within and outside of parliament
between different political forces;
– the right “to organised political opposition” is also constitutionally secured by the rule of
law;
– however, the central role of the parliamentary opposition is carrying out the parliament’s
oversight function; in order for the opposition to be able to perform its oversight function, the
minority rights provided for in the Basic Law must be interpreted with a view to their
effectiveness; the opposition must be given the right to establish a committee (commission) of
inquiry and must not be dependent on the parliamentary majority’s benevolence when exercising
its oversight powers; the opposition is entrusted with those powers not merely in its own interest,
but primarily in the interest of the democratic state in which power is distributed.
On the other hand, this judgment also states that:
– the Basic Law does not explicitly create specific rights for parliamentary opposition, nor
can an obligation to create such rights be derived from it; this would be incompatible with the
principle of equality of the members of the Bundestag, as enshrined in the Basic Law;
– within the system of the Basic Law, the rights of the parliamentary opposition are
designed as rights of parliamentary minorities; qualifying as a minority provided with such special
rights is a matter of reaching a certain quorum with members of the Bundestag.
V
The assessment of the compliance of Paragraph 7 of Article 71 of the Statute of the Seimas
with the Constitution
21. As mentioned above, in this constitutional justice case, the petitioner requests an
investigation into whether the resolution of the Seimas of 31 May 2018 is in conflict with
Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus
obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the
same article, and Paragraph 3 of Article 232 of the Statute of the Seimas.
22. It should be noted that the implementation of constitutional justice implies that a legal
act (part thereof) that is in conflict with the Constitution must be removed from the legal system;
therefore, having found the unconstitutionality of a law whose compliance with the Constitution is
not impugned by the petitioner, but on which the impugned substatutory legal act is based, the
Constitutional Court must state that such a law is unconstitutional; this duty of the Constitutional
Court stems from the Constitution and, in this way, the supremacy of the Constitution is ensured
(the Constitutional Court’s rulings of 29 November 2001, 29 September 2015, and 15 February
2019).
24
23. The material of this constitutional justice case shows that the impugned resolution of
the Seimas of 31 May 2018 was adopted in accordance with Paragraph 7 of Article 71 of the
Statute of the Seimas.
24. As mentioned above, legal certainty and clarity is one of the essential elements of the
constitutional principle of a state under the rule of law, which implies that any legal regulation is
subject to certain mandatory requirements: a legal regulation must be clear and harmonious; legal
norms must be formulated precisely and may not contain any ambiguities; the consistency and
internal coherence of the legal system must be ensured; legal acts may contain no provisions
simultaneously regulating the same social relationships in a different manner.
25. It has been mentioned that, under Paragraph 7 of Article 71 of the Statute of the
Seimas, the Seimas may, “in certain instances”, establish another procedure for forming
commissions, however, these may not consist of representatives of one political group or one
committee; thus, under Paragraph 7 of Article 71 of the Statute of the Seimas, the Seimas may
establish a procedure for forming commissions that is different from that established in
Paragraphs 3–6 of Article 71 of the Statute of the Seimas.
It has also been mentioned that neither Paragraph 7 of Article 71 of the Statute of the
Seimas nor other provisions of the Statute of the Seimas specify in detail in which cases such a
different procedure for the formation of commissions may be established and do not provide in
which legal form (by means of which legal act), under which procedures, and which specific rules
for the formation of commissions may be established by the Seimas.
26. It should be held that Paragraph 7 of Article 71 of the Statute of the Seimas, governing
the procedure for the formation of commissions of the Seimas, consolidates a legal regulation
(which does not specify in which cases such a different procedure for the formation of
commissions may be established, and which does not provide in which legal form (by means of
which legal act), under which procedures, and which specific rules for the formation of
commissions may be established by the Seimas) not meeting the mandatory requirements for a
legal regulation such as its clarity and precision; such a legal regulation does not ensure the
consistency and internal coherence of the legal system.
Consequently, the legal regulation enshrined in Paragraph 7 of Article 71 of the Statute of
the Seimas does not correspond to one of the essential elements of the principle of a state under the
rule of law, enshrined in the Constitution, namely legal certainty and clarity.
27. In the light of the above arguments, it should be concluded that Paragraph 7 of
Article 71 of the Statute of the Seimas is contrary to the constitutional principle of a state under the
rule of law.
VI
25
The assessment of the compliance of the resolution of the Seimas of 31 May 2018 with the
Constitution and the Statute of the Seimas
28. As mentioned above, in this constitutional justice case, the petitioner requests an
investigation into the compliance of the resolution of the Seimas of 31 May 2018 with Paragraph 3
of Article 71, the provisions “The Seimas shall vote on the list of candidates thus obtained. Should
it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the same article, and
Paragraph 3 of Article 232 of the Statute of the Seimas.
29. The petitioner’s doubts as to the compliance of the impugned resolution of the Seimas
with the above-mentioned provisions of the Statute of the Seimas are essentially based on the fact
that, in its view, the composition of the Commission became unlawful following the adoption of
the impugned resolution of the Seimas, as one of its members had been removed from the
Commission's composition, but the number of members of the Commission and the proportion of
the representation of the political groups had not been changed; therefore, the procedure,
established in the Statute of the Seimas, for the formation of commissions of the Seimas was
violated.
30. When deciding on the compliance of the resolution of the Seimas of 31 May 2018 with
Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list of candidates thus
obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the
same article, and Paragraph 3 of Article 232 of the Statute of the Seimas, it should be noted that, as
mentioned above, according to the said provisions of the Statute of the Seimas:
– in setting up a special investigation commission, first the number of members of the
commission is determined, then the rates of the proportional representation of the political groups
in the Seimas (thus, also of the political representation of the majority of the Seimas and the
minority of the Seimas) and the deadline for proposing candidates for the members of the
commission are established; the candidates are proposed by both the majority of the Seimas and
the minority of the Seimas, and when the Seimas votes for the candidates proposed by the majority
and the minority of the Seimas, the entire list of members of the commission so formed is voted on
and, if the list is not approved, the procedure for appointing members of the commission is re-
launched and repeated by using the same method;
– in setting up a special investigation commission, the said procedures must be followed in
order, and one of these procedures is the procedure for proposing candidates for the members of
the commission, in which both the majority of the Seimas and the minority of the Seimas must
participate.
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It has also been mentioned that neither Articles 71 and 232 of the Statute of the Seimas nor
other provisions of the Statute of the Seimas contain a specific legal regulation that would provide
for the possibility of changing the composition of the special investigation commission.
Thus, it should be held that, under the legal regulation enshrined in the Statute of the
Seimas, inter alia, in Articles 71 and 232 thereof, if it becomes necessary to change the
composition of a commission of the Seimas, inter alia, that of a special investigation commission,
the relevant commission of the Seimas must be formed anew in accordance with the procedure
established in the Statute of the Seimas.
31. As mentioned above, after the impugned resolution of the Seimas of 31 May 2018 had
amended Article 2 of the resolution of the Seimas of 20 March 2018 by deleting one of the
members from the composition of the Commission, the Commission was not formed anew, but
only a change in its composition was made.
It should be held that the resolution of the Seimas of 31 May 2018 was adopted without the
completion of one of the above-mentioned procedures (established in Paragraph 3 of Article 71 of
the Statute of the Seimas, the provisions “The Seimas shall vote on the list of candidates thus
obtained. Should it fail to be approved, the procedure shall be repeated” of Paragraph 5 of the
same article, and Paragraph 3 of Article 232 of the Statute of the Seimas) for the formation of
special investigation commissions of the Seimas, since neither the majority of the Seimas nor the
minority of the Seimas proposed candidates for all the seats of the Commission. Thus, the
impugned resolution of the Seimas of 31 May 2018 had been adopted without complying with the
requirements (established in Paragraph 3 of Article 71, the provisions “The Seimas shall vote on
the list of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated”
of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas) for
the formation of special investigation commissions of the Seimas; also, the requirement, laid down
by the Statute of the Seimas, inter alia, Articles 71 and 232 thereof, that, if it becomes necessary to
change the composition of a commission of the Seimas, inter alia, that of a special investigation
commission, the relevant commission of the Seimas must be formed anew in accordance with the
procedure established in the Statute of the Seimas, had thus been disregarded.
32. It needs to be noted that the impugned resolution of the Seimas of 31 May 2018 may
not be based on Paragraph 7 of Article 71 of the Statute of the Seimas, which, as stated in this
ruling of the Constitutional Court, is in conflict with the constitutional principle of a state under
the rule of law.
33. Taking into account the foregoing arguments, it should be concluded that the resolution
of the Seimas of 31 May 2018 is in conflict with Paragraph 3 of Article 71 and the provisions “The
Seimas shall vote on the list of candidates thus obtained. Should it fail to be approved, the
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procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of Article 232 of
the Statute of the Seimas.
34. It should be noted that Paragraph 1 of Article 7 of the Constitution provides that any
law or other act that contradicts the Constitution is invalid.
The Constitutional Court has held on more than one occasion that the principle of the
supremacy of the Constitution means that the Constitution stands in the exceptional, highest, place
in the hierarchy of legal acts; no legal act may be in conflict with the Constitution; no one is
permitted to violate the Constitution; the constitutional order must be defended (inter alia, the
Constitutional Court’s rulings of 24 December 2002, 29 March 2012, and 11 July 2014).
Thus, in the light of the principle of the supremacy of the Constitution, it should be noted
that Constitutional Court, when examining, subsequent to the petition filed by a petitioner, whether
an impugned substatutory legal act (part thereof) is in conflict with legal acts that have the force of
a law, after it finds that the impugned substatutory legal act (part thereof) is in conflict with the
Constitution, has the power to state that such a substatutory legal act (part thereof) is
unconstitutional.
35. In this ruling of the Constitutional Court, it has been stated that:
– according to Article 76 of the Constitution, the structure and procedure of work of one of
the state authorities, the Seimas, is established by the Statute of the Seimas, having the force of a
law;
– certain questions linked with the formation of the structural units of the Seimas, the
establishment of their competence, the formation of their composition, or the formulation of tasks
to them may be decided by means of substatutory legal acts of the Seimas;
– the Constitution, inter alia, the principles of the organisation and operation of the State of
Lithuania and the concept of a pluralistic parliamentary democracy, which are implied by the
constitutional principle of a state under the rule of law, require, in accordance with Article 76 of
the Constitution, the establishment of such a structure and procedure of activities of the Seimas
that would ensure the effective protection of the rights of the parliamentary minority, inter alia,
those of the parliamentary opposition, and guarantees for its activities; this means, inter alia, that
the principle of proportional representation must be ensured in the formation of the structural units
of the Seimas (inter alia, committees and commissions of the Seimas), and that the composition of
such structural units of the Seimas, inter alia, changes in the said composition, must not depend
solely on the discretion of the parliamentary majority;
– under the Constitution, inter alia, Article 76 thereof, and the constitutional principle of a
state under the rule of law, the composition of an ad hoc investigation commission of the Seimas,
inter alia, of a commission of the Seimas set up before the beginning of impeachment proceedings
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in order to investigate the reasonableness of charges brought against a specific person, cannot be
changed solely at the discretion of the parliamentary majority in the absence of clear and
constitutionally justified reasons; such reasons could include, inter alia, the situation where a
member of an ad hoc investigation commission of the Seimas, inter alia, of a commission of the
Seimas set up before the beginning of impeachment proceedings in order to investigate the
reasonableness of charges brought against a specific person, in the exercise of his/her functions,
uses the free mandate of a member of the Seimas not in the interests of the People and of the State
of Lithuania, but uses that mandate, inter alia, in his/her own personal or group interests.
36. As mentioned above:
– following the amendment of Article 2 of the resolution of the Seimas of 20 March 2018
by the impugned resolution of the Seimas of 31 May 2018, one of its members, Andrius Kubilius,
a member of the Seimas, belonging to the opposition political group of the Homeland Union –
Lithuanian Christian Democrats, was removed from the Commission;
– by the impugned resolution of the Seimas of 31 May 2018, no other member of the
Seimas was appointed instead of the removed member of the Seimas; the remaining composition
of the Commission remained unchanged, leaving 11 members instead of 12;
– Article 1 of the resolution of the Seimas of 20 March 2018, according to which the
Commission comprised 12 members, was not amended by the impugned resolution of the Seimas
of 31 May 2018.
Consequently, the removal of Seimas member Andrius Kubilius from the Commission had
reduced the number of the representatives of the minority of the Seimas, inter alia, those of the
opposition political groups, and the failure to change the number of members of the Commission
had changed the proportion of the representation of the political groups of the Seimas in the
Commission.
37. It has been mentioned that the draft (No XIIIP-2154) of the impugned resolution of the
Seimas does not specify the circumstances and reasons that led to the submission of this draft
resolution.
It has also been mentioned that the draft (No XIIIP-2154) of the impugned resolution of the
Seimas was prepared following the publication in the press of the information on the basis of
which it was presumed that there was a potential conflict between public and private interests of
the member of the Commission Andrius Kubilius.
It should be noted that the adoption of the resolution of the Seimas of 31 May 2018 was
based solely on information that had appeared in the press, since, as mentioned above, at its
meeting of 30 May 2018, the VTEK decided not to open an investigation into the compatibility of
the conduct of Seimas member Andrius Kubilius with the provisions of the Law on the
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Coordination of Public and Private Interests in State Service; it has also been mentioned that, at its
meeting of 13 June 2018, the Commission for Ethics and Procedures of the Seimas also decided
not to open an investigation into the conduct of Seimas member Andrius Kubilius.
38. Accordingly, in the light of these circumstances, it must be held that the impugned
resolution of the Seimas of 31 May 2018, by which Seimas member Andrius Kubilius, belonging
to the opposition political group of the Homeland Union – Lithuanian Christian Democrats, was
removed from the Commission, was adopted without examining, in accordance with the procedure
laid down by law, the information on the basis of which it was presumed that there was a potential
conflict between public and private interests of the member of the Commission Andrius Kubilius;
thus, it was adopted in the absence of clear and constitutionally justified reasons.
Therefore, it should also be held that, when adopting the impugned resolution of the
Seimas of 31 May 2018, the Seimas had disregarded the following requirements, arising from the
Constitution, inter alia, from Article 76 thereof and the constitutional principle of a state under the
rule of law: (1) to ensure the proportional representation of the parliamentary majority and the
parliamentary minority, inter alia, parliamentary opposition, in the formation of structural units of
the Seimas (inter alia, the committees and commissions of the Seimas); (2) not to change, at the
sole discretion of the parliamentary majority and in the absence of clear and constitutionally
justified reasons, the composition of an ad hoc investigation commission of the Seimas, inter alia,
the composition of a commission of the Seimas set up before the beginning of impeachment
proceedings in order to investigate the reasonableness of charges brought against a specific person.
39. In the light of the above arguments, it should be concluded that the resolution of the
Seimas of 31 May 2018 is in conflict with Article 76 of the Constitution, as well as with the
constitutional principle of a state under the rule of law.
40. As mentioned above, by means of the resolution of the Seimas of 30 June 2018, the
Seimas upheld the Commission’s conclusion that there were no grounds to begin impeachment
proceedings against Seimas member Artūras Skardžius.
40.1. In this context, it should be noted that, when interpreting Paragraph 1 of Article 107
of the Constitution, the Constitutional Court has disclosed the content (which arises from the said
paragraph) of the presumption of the constitutionality of legal acts and the legitimacy of the
consequences of their application, which stems from the Constitution: the provision of Paragraph 1
of Article 107 of the Constitution, whereby a law (part thereof) may not be applied from the day of
the official publication of the decision of the Constitutional Court that the act in question (part
thereof) is in conflict with the Constitution, means that, as long as the Constitutional Court has not
officially published the decision that a certain legal act (part thereof) is in conflict with the
Constitution, it is presumed that such a legal act (part thereof) is in compliance with the
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Constitution and that the legal consequences that have appeared on the basis of the act in question
are legitimate (inter alia, the Constitutional Court’s rulings of 30 December 2003, 25 October
2011, and 16 April 2019).
40.2. Thus, in the context of this constitutional justice case, it should be noted that the
presumption of the lawfulness of the legal consequences resulting from the resolution of the
Seimas of 31 May 2018, which was declared to be unconstitutional and contrary to the Statute of
the Seimas, inter alia, the presumption of the lawfulness of the resolution of the Seimas of 30 June
2018, is not negated. In particular, the fact that one of the 12 members was removed from the
Commission in violation of the Constitution is not such as to create grounds for calling into
question the constitutionality of the resolution of the Seimas of 30 June 2018, insofar as the said
resolution upheld the Commission’s conclusions.
40.3. Thus, the fact that it was held in this ruling of the Constitutional Court that the
resolution of the Seimas of 31 May 2018 is in conflict with Article 76 of the Constitution and the
constitutional principle of a state under the rule of law, as well as with Paragraph 3 of Article 71,
the provisions “The Seimas shall vote on the list of candidates thus obtained. Should it fail to be
approved, the procedure shall be repeated” of Paragraph 5 of the same article, and Paragraph 3 of
Article 232 of the Statute of the Seimas, does not, in itself, justify calling into question the
constitutionality of the resolution (No XIII-1425) of the Seimas of 30 June 2018 on upholding the
conclusion of the special investigation commission of the Seimas of the Republic of Lithuania for
an investigation into the reasonableness of the motion submitted by a group of members of the
Seimas of the Republic of Lithuania to institute impeachment proceedings against Artūras
Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a conclusion
regarding the grounds for instituting the impeachment proceedings.
Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and
Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of Lithuania gives the following
ruling:
1. To recognise that Paragraph 7 of Article 71 of the Statute of the Seimas of the Republic
of Lithuania (wording of 22 December 1998; Official Gazette Valstybės žinios, 1999, No 5-97) is
in conflict with the constitutional principle of the rule of law.
2. To recognise that the resolution (No XIII-1227) of the Seimas of the Republic of
Lithuania of 31 May 2018 amending the resolution (No XIII-1036) of the Seimas of the Republic
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of Lithuania of 20 March 2018 on forming a special investigation commission of the Republic of
Lithuania for an investigation into the reasonableness of the motion submitted by a group of
members of the Seimas of the Republic of Lithuania to institute impeachment proceedings against
Artūras Skardžius, a member of the Seimas of the Republic of Lithuania, and for drawing up a
conclusion regarding the grounds for instituting the impeachment proceedings (Register of Legal
Acts, 06-06-2018, No 9506, identification code 2018-09506) is in conflict with Article 76 of the
Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule
of law, as well as with Paragraph 3 of Article 71, the provisions “The Seimas shall vote on the list
of candidates thus obtained. Should it fail to be approved, the procedure shall be repeated” of
Paragraph 5 of the same article, and Paragraph 3 of Article 232 of the Statute of the Seimas of the
Republic of Lithuania (wording of 22 December 1998).
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This ruling of the Constitutional Court is final and not subject to appeal.
Justices of the Constitutional Court: Elvyra Baltutytė
Gintaras Goda
Vytautas Greičius
Danutė Jočienė
Gediminas Mesonis
Vytas Milius
Daiva Petrylaitė
Janina Stripeikienė
Dainius Žalimas