2016 Global Review of Constitutional Law

THE CONSTITUTION AND THE
COURT
The Constitution of the Republic of
Lithuania was adopted by referendum on
25 October 1992. This marked a new future
of the constitutional development of an
independent democratic state of Lithuania.
The Constitution, as the highest-ranking
act and a social contract, is based on
universal and unquestionable values, such
as sovereignty belonging to the Nation,
democracy, the recognition of inalienable
human rights and freedoms and respect for
them, respect for law and the rule of law, the
limitation of the scope of state powers, the
duty of state institutions to serve the people
and their responsibility to society, civic
consciousness, justice, and the striving for
a harmonious civil society and a state under
the rule of law.
For the first time in the history of the State
of Lithuania, the Constitution of 1992 also
consolidated the institute of constitutional
judicial review. The Constitution stipulates
that, in Lithuania, constitutional control is
carried out by the Constitutional Court, which
consists of nine justices, each appointed
for a single nine-year term of office. The
Constitutional Court, which was formed
and began its activities in 1993, ensures the
supremacy of the Constitution within the legal
system, as well as administers constitutional
justice, by deciding whether the laws and
other legal acts adopted by the Seimas are
in conformity with the Constitution, and
whether the acts adopted by the President
of the Republic or the Government are in
compliance with the Constitution and laws.
Under the Constitution, in performing this
function, the Constitutional Court has the
exclusive powers to interpret the Constitution
by revealing its meaning and the content of
its provisions.
According to the Constitution, the right to
apply to the Constitutional Court is vested
in the Seimas in corpore, not less than
1/5 of all the members of the Seimas, the
President of the Republic, the Government,
and all courts. The Lithuanian legal system
does not provide for the institution of the
individual constitutional complaint, which
would enable individuals to directly apply
to the Constitutional Court. However,
legislative actions have recently been taken
(i.e. relevant constitutional amendments
have been registered) in the Seimas in
order to introduce individual constitutional
complaints.
Currently, the Constitutional Court
is also a full member of international
organisations—the World Conference on
Constitutional Justice and the Conference
of European Constitutional Courts—
uniting constitutional justice institutions.
From the very beginning of its activity,
the Constitutional Court has been actively
cooperating with the constitutional courts of
neighboring countries—Latvia and Poland.
Over the last few years, the Constitutional
Court has considerably strengthened the
cooperation with the constitutional courts of
the European Union’s Eastern Partnership
countries—Georgia, the Republic of
Moldova, and Ukraine. The Constitutional
Court also maintains cooperation ties with
the European Commission for Democracy
through Law (Venice Commission), which
have become especially evident in the
context of the upcoming 4th Congress of the
World Conference on Constitutional Justice.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
According to the official constitutional
doctrine developed by the Constitutional
Court of the Republic of Lithuania, respect
for international law is an inseparable part
of the constitutional principle of a state
under the rule of law. However, due to the
fact that the Constitution and international
law are inherently autonomous and have
superiority in their respective spheres, certain
incompatibilities between international legal
norms and constitutional norms may arise. 3
The so-called Paksas case is a prominent
example of such incompatibility.
This case was initiated in the European
Court of Human Rights (ECtHR) after the
Constitutional Court had adopted the ruling
of 25 May 2004, in which it was held that,
under the Constitution, a person who, inter
alia, grossly violated the Constitution and
breached the oath and, as a result of this, was
removed under the impeachment procedure
from office could never again stand in
elections for an office requiring a person
to take an oath to the State of Lithuania. A
person who was directly affected by the said
Constitutional Court’s decision—Rolandas
Paksas, a former President of the Republic of
Lithuania—applied to the ECtHR in defence
of his right to stand in elections. Having
considered the application, in its judgment
of 6 January 2011, 4 the ECtHR ruled that the
permanent and irreversible disqualification
from standing in parliamentary elections
was disproportionate and that, in having
established such a disqualification,
Lithuania had violated Article 3 of Protocol
No 1 of the Convention for the Protection of
Human Rights and Fundamental Freedoms
(hereinafter referred to as the Convention),
which, as mentioned in the judgment of
the ECtHR, consolidates the fundamental
principle of an effective political democracy
and implies the subjective rights to vote
and to stand for election. In the judgment
of the ECtHR, it is acknowledged that the
right at issue is not absolute and that certain
limitations of this right are permissible,
but that these limitations may not be of a
permanent character.
The Constitutional Court and the ECtHR
assessed the situation regarding one’s
ineligibility to stand in parliamentary elections
from different positions: in its rulings, the
Constitutional Court emphasised allegiance
to the State of Lithuania, loyalty, and (in)
eligibility to take up a responsible office once a
serious transgression has been committed—a
gross violation of the Constitution and a
breach of an oath taken to the state; while
the ECtHR interpreted the same situation
3
Dainius Žalimas, ‘The Openness of the Constitution to International Law as an Element of the Principle of the Rule of Law’ (International Conference
‘Constitutional Court of the Republic of Slovenia – 25 Years’, Bled, June 2016) http://www.us-rs.si/media/zbornik.25.let.pdf.
4
Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011).
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