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Developments in Lithuanian Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the seventh installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak RepublicRomaniaBelgiumSweden and the Czech Republic. As we have done in the past, we reiterate our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our contributors from Lithuania. –Richard Albert]

Prof. Dr. Dainius Žalimas, President of the Constitutional Court; Dr. Ingrida Danėlienė, Lecturer, Vilnius University; Vaidas Lubauskas, Head of Legal Research Division at the Constitutional Court

I. Introduction

The Constitutional Court of the Republic of Lithuania seeks to make its official constitutional doctrine accessible to legal specialists of foreign states by translating into English and placing on the website of the Constitutional Court all of its acts and summaries, as well as publishing collections of the selected acts in the English language in the series titled “Selected Decisions”. However, there is yet no research tool which could help find the most important constitutional case law of the Constitutional Court of the Republic of Lithuania in any given year. Therefore, in order to fulfill this gap, we have prepared this report reviewing ten notable rulings in Lithuanian constitutional law from 2015.

II. General Remarks

Although last year the Constitutional Court of the Republic of Lithuania delivered 23 acts on the merits of the cases which addressed the broad range of matters, the jurisprudential activity in this year was hallmarked by the consideration of some cases of particular significance. The vast part of them comprised cases on various issues concerning the ensuring of the constitutional rights and freedoms of persons (the freedom of economic activity, the right to freely choose a job, the right to social security, the electoral rights, the equality of the rights of persons). There were also two cases concerning the activity of state institutions which deserve particular mention.

One of the most substantial issues in the jurisprudence of the Constitutional Court in 2015 was the regulation of economic activity for the benefit of the general welfare of the nation in the area of energy. The constitutional justice cases in this category dealt with the selection of the company for implementing the project of the Liquefied Natural Gas Terminal and on the funding of this project, the exploration and exploitation of the subsurface by means of hydraulic fracturing, as well as the public interest services in the electricity sector. In these cases, the Constitutional Court, among other things, had to assess whether the impugned legal regulation of economic activity violated the balance of different constitutional values, inter alia, freedom of individual economic activity and economic initiative, the protection of consumer interests, the protection of human health and the environment. All the legal acts impugned in these cases were ruled to have been not in conflict with the Constitution.

Among the most important cases decided by the Constitutional Court last year there was the case concerning the issue of the equivalence of votes cast by voters in the election of the Seimas. This case principally dealt with the issue of forming electoral constituencies in a manner ensuring equal electoral rights—one of the universally recognised principles of democratic elections. The Constitutional Court emphasised that constituencies must be formed in such a manner that ensures the equal value of votes and the equal significance of votes when the results of voting are established. Under the impugned legal regulation, due to the permitted disparity in the number of voters in different single-member constituencies, the number of voters in the largest single-member constituency could be one-and-a-half times higher than in the smallest single-member constituency. Therefore, this legal regulation was ruled by the Constitutional Court to be in conflict with the Constitution.

Last year, the Constitutional Court had to assess the constitutionality of a limitation on the right of servicemen of professional military service to work in another job. The Constitutional Court has already decided as unconstitutional the legal regulation imposing a limitation on the right of state servants and customs officials to work in another job, leading to think that the similar limitation as regards the servicemen of professional military service also was in conflict with the Constitution. However, the Constitutional Court recognised that the legal regulation imposing a limitation on the right of servicemen of professional military service to work in another job ruled is in compliance with the Constitution.

The main constitutional issue in two cases considered by the Constitutional Court last year was ensuring the equality of the rights of persons. In one of those cases, the Constitutional Court assessed the legal regulation of taxing immovable property belonging to family members; in the other case, it decided whether the equality of the rights of persons had been violated in the course of regulating the use of right-hand-drive vehicles on public roads. In both cases the Constitutional Court declared the unconstitutionality of the legal acts impugned.

Last year, as well as over the last few years, the Constitutional Court had to decide more than one case concerning the ensuring of the constitutional right to social security. The right to social security is one of the rights that have been most thoroughly interpreted in the jurisprudence of the Constitutional Court. However, new constitutional disputes continue to arise in relation to various aspects of the content of this right and indicate that this constitutional right bears special relevance. Among the cases considered last year, one case dealt with the right to social assistance for persons who have no access to housing.

Among the cases concerning the activity of state institutions, particular attention has to be paid to two cases. In one of those cases the Constitutional Court had to assess the constitutionality of the legal regulation governing accounting to the Seimas by the heads of state institutions (with the exception of courts), including the Prosecutor General, who are appointed by the Seimas or whose appointment requires the assent of the Seimas, for the activity of their respective institution. In this case, the Constitutional Court continued to develop the official constitutional doctrine revealing the powers of the Seimas, as the representation of the Nation, to receive the information required for fulfilling its functions, and defined, in more detail, the possible actions of the Seimas after it receives, inter alia, information, presented in the form of a report, about the activity of various state institutions. In another case, the Constitutional Court considered the constitutionality of the issues concerning municipal funding. The Constitutional Court held that the legislature is obliged to establish clear criteria according to which municipalities are allocated a certain share of the personal income tax collected by them, and according to which certain differences are assessed in the development of municipalities. The legislature has not fulfilled such duty therefore the legal acts impugned were ruled to have been in conflict with the Constitution.

III. The acts of the Constitutional Court on issues concerning the constitutional rights and freedoms of persons

  1. 03-04-2015 ruling No. KT10-N6/2015, case No. 23/2012-38/2014-54/2014 – On the selection of the company implementing the project of a terminal of liquefied natural gas and on funding this project

In this case, the provisions of the Law on the Liquefied Natural Gas Terminal governing the selection of the company implementing the project of a terminal of liquefied natural gas and on funding this project ruled not in conflict with the Constitution.

The Constitutional Court drew the conclusion that the provision of the law, under which the project of the liquefied natural gas terminal is implemented by a state-controlled company that is responsible for the installation of a specific liquefied natural gas terminal which must ensure a safe and reliable supply of natural gas to all Lithuanian consumers, had not denied freedom of individual economic activity and initiative, which are consolidated in the Constitution. By leaving the decisive power to the state in the company in charge of implementing the liquefied natural gas terminal, it was sought to create the legal preconditions for the state to carry out an effective control over the aforesaid company and to implement the project of this terminal, which is of strategic importance to national security, in such a way that a constitutionally important objective, a public interest—the security and reliability of the energy system—would be ensured, as well as to timely implement the commitments, arising out of the membership of the Republic of Lithuania in the European Union, which aim at guaranteeing the security of the supply of natural gas.

The Constitutional Court also drew the conclusion that the Liquefied Natural Gas Supplement, which is consolidated in the law and which is one of the sources of financing the project of the liquefied natural gas terminal, should not be regarded as a state tax or other compulsory payment within the meaning of the Constitution, but as a constituent part of the price, regulated by the state, of natural gas that is paid for the public services rendered by independent economic entities, i.e. for the installation and operation of the natural gas infrastructure, which aims at ensuring that natural gas is supplied to all Lithuanian consumers in a secure and reliable manner. The duty that is imposed on all the consumers that use the natural gas transmission system to pay the said part of the price of natural gas may not as such be treated as a limitation on the rights of ownership, and all the more so, as taking property over for the needs of society.

Full-text in English is available here.

  1. 16-12-2015 ruling No. KT33-N21/2015, case No. 23/2013 – On the research and use of the subsurface by applying hydraulic fracturing

By this ruling, the provisions of the Subsurface Law related to the possibility of leaving, in the subsurface, the waste as a result of hydraulic fracturing ruled not in conflict with the Constitution.

Constitutional Court has noted that the state is under constitutional obligation to ensure the protection and rational use of the subsurface as a national valuable of general importance which belongs to the state by right of exclusive ownership. It was emphasised in the ruling that the legislature, while pursuing the state economic policy together with the policy of using the subsurface, must regulate the economic and other activity (where such activity might pose a threat to the environment or people’s health) related, under the Constitution, to using the subsurface in a manner that different constitutional values (freedom of individual economic activity and economic initiative, freedom of fair competition, the protection of consumers’ interests, the protection of people’s health and the environment) would be coordinated and the economic interests of the state, inter alia, the security and reliability of the energy system, would be ensured. The Constitutional Court noted that, under the Constitution, the legal regulation of economic activity is also possible, which is established by the legislature and is designed for ensuring the general welfare of the nation as well as related to using the subsurface, whereby it is allowed to apply the ways (technologies) of researching the subsurface and mining its resources, where such ways (technologies) might pose a threat to the environment or people’s health. Alongside, the Constitutional Court noted that it is also necessary to establish effective measures that could create preconditions for a proper protection of the environment or people’s health, and that it is not allowed to carry out any such economic activity by which inevitable harm could be inflicted on the environment or people’s health.

Full-text in English is available here.

  1. 29-10-2015 ruling No. KT28-N17/2015, case No. 13/2013-34/2014 – On public interest services in the electricity sector

In this case, the Constitutional Court reviewed whether the legal regulation laid down by the Government in relation to the provision and financial administration of public interest services in the electricity sector was in compliance with the Constitution and laws. The Constitutional Court, in principle, dealt with two questions: first, whether the Government unlawfully expanded the list of public interest services that had been established in the law and, second, whether the Government unlawfully expanded the circle of subjects who, under the law, must pay for public interest services. In this ruling, the legal regulation governing services meeting public interests in the electricity sector ruled in compliance with the Constitution and the respective provisions of laws.

While assessing whether the powers to establish a list of services meeting the public interest had been implemented properly, the Constitutional Court noted, among other things, that, under the Constitution, the specific character of economic activity in the sphere of energy and the necessity to ensure the security and reliability of the energy system, as well as the striving for ensuring the protection of the environment by promoting in various ways the use of renewable energy sources, determine the peculiarities of the legal regulation on services meeting the public interest, therefore, it is also possible to establish such legal regulation on public services in the sphere of electricity that would provide for the duty of all electricity consumers to pay for such services. The Constitutional Court also noted that, under the legal regulation established in the Law on Electricity, the duty of every electricity consumer (a person whose equipment is connected either to the respective networks or to a direct line and who, due to this, has a possibility of buying electricity) to pay for services meeting the public interest is related to the amount of electricity used by them irrespective of the fact which part of the used electricity is bought or which part is generated by consumers themselves.

Full-text in English is available here.

  1. 20-10-2015 ruling No. KT27-N16/2015, case No. 10/2015 – On the different number of voters in single-member constituencies

In this ruling, the Constitutional Court recognised that the provision of the Law on Elections to the Seimas, which permitted the deviation in the number of voters in a single-member constituency up to 20 percent from the average number of voters in all single-member constituencies, was in conflict with the Constitution. The Constitutional Court held that, due to such a deviation from the size between the largest and smallest constituency, according to the number of voters, an obvious disproportion of the number of voters is created—as regards the number of voters, the largest constituency is even 1.5 times larger than the smallest constituency. Therefore, the legal regulation, whereby the deviation of the number of voters of up to 20 percent is allowed, does not ensure an even distribution (as much as possible) of the number of voters among single-member constituencies, and, thus, preconditions for distorting the equal value of voters’ votes in establishing the results are created.

Full-text in English is available here.

  1. 04-11-2015 ruling No. KT29-N18/2015, case No. 2/2014 – On a limitation on the right of servicemen of professional military service to work in another job

In this ruling, the legal regulation imposing a limitation on the right of servicemen of professional military service to work in another job ruled in compliance with the Constitution. The Constitutional Court held that the legislature, while imposing the prohibition for professional military servicemen against employment under an employment contract or against self-employment, except in cases provided for by law, not only heeded the limitations on the activity of professional military servicemen as consolidated in and derived from the Constitution, but also properly implemented the right to establish, at its discretion, other limitations on such activity which are implied by the constitutional mission of military service, an exceptional character of the status of servicemen, a special character of this service, as well as other important circumstances related to ensuring national defence and national security, as well as ensuring the fulfilment of the international obligations undertaken by the State.

English summary available here.

  1. 26-05-2015 ruling No. KT16-N10/2015, case No. 7/2013 – On the right to social housing

In this case, the Constitutional Court, for the first time, considered the issue concerning social assistance for persons who have no access to housing. The Constitutional Court has considered the petition of the petitioner that impugned the legal regulation that used to be valid before. According to such legal regulation, persons used to lose the right to social housing if their property or income received by them exceeded the levels, even only in a minimal manner, established by the Government.

The Constitutional Court recognised that the provisions of the law, by which a social housing lease must also be terminated in cases where the property or income of a tenant exceeds the government-established levels by not surpassing the possibility for the person or their family of leasing social housing that meets the minimum socially accepted requirements was in conflict with Article 52 of the Constitution, in which the right to social assistance is guaranteed, and with the constitutional principle of a state under the rule of law. The Constitutional Court noted that, under the legal regulation where social housing is lost even in cases when the government-established limits of the property and income are exceeded only minimally, the situation of a tenant of social housing may be deteriorated considerably and such a person may essentially be brought back to the same position as before receiving social housing.

Full-text in English is available here.

  1. 22-09-2015 ruling No. KT24-N14/2015, case No. 17/2013 – On taxation with the immovable property tax

By this ruling the Constitutional Court recognised that the provision of the Law on Immovable Property Tax whereby family members are taxed jointly on all their immovable property, by applying the same value not subject to taxation as applied to the property of a single natural person who, under this law, is not deemed a family member, was in conflict with the Constitution. According to the Constitutional Court, such legal regulation violated the constitutional principle of the equality of persons, since, from the aspect of calculating and paying the immovable property tax, persons deemed to be family members are treated differently from other natural persons, even though, from the aspect of taxing such persons with the immovable property tax, there are not any such differences between these persons so that such unequal treatment could objectively be justified; such legal regulation is also incompatible with the obligation undertaken by the state consolidated in the Constitution to ensure that the state would protect and care for family, motherhood, fatherhood, and childhood, as constitutional values, in every possible manner.

Full-text in English is available here

  1. 06-02-2015 ruling No. KT6-N2/2015, case No. 18/2012 – On right-hand-drive vehicles on public roads

In this case, the Constitutional Court adopted the ruling recognising that the provisions of the Law on Road Traffic Safety, as well as of the Road Traffic Rules, was (had been) in conflict with the constitutional principles of the equality of the rights of persons and a state under the rule of law, insofar as this legal regulation established (had established) that the prohibition on driving, on public roads, motor vehicles equipped with the steering wheel on the right did not apply (had not applied) to the citizens of Lithuania whose permanent place of residence was (had been) in a foreign state, once they arrived (had arrived) in Lithuania on a temporary basis (up to 90 days per year) in vehicles registered abroad, and, at the same time, established (had established) that such a prohibition applied (had applied) to the citizens of Lithuania whose permanent place of residence was (had been) in Lithuania. The Constitutional Court noted that the constitutional principles of the equality of the rights of persons and a state under the rule of law give rise to the prohibition according to which, when establishing, by law, a legal regulation based on which persons acquire certain rights, the legislature is not allowed, without an objective justification, to consolidate any differentiated legal regulation depending on whether a citizen, having exercised his/her constitutional freedom of movement, has chosen his/her permanent place of residence in Lithuania or in a foreign state. According to the Constitutional Court, there is no legal ground for stating that citizens whose permanent place of residence is in a foreign state where traffic drives on the left-hand side of the road and where, as a rule, vehicles constructed for such traffic (i.e., equipped with the steering wheel on the right) are used on public roads, or citizens whose permanent place of residence is in a foreign state where traffic drives on the right-hand side of the road, but where it is permitted to register motor vehicles designed to be driven on the left-hand side of the road, once they temporarily drive, on public roads in Lithuania, foreign-registered motor vehicles equipped with the steering wheel on the right, pose a lower risk to traffic safety than citizens whose permanent place of residence is in Lithuania.

Full-text in English is available here.

IV. The acts of the Constitutional Court on issues concerning the activity of state institutions

  1. 30-12-2015 ruling No. KT34-N22/2015, case No. 20/2013-1/2014 – On institutions’ annual reports submitted to the Seimas, the account of the Prosecutor General to the Seimas and a proposal to release him/her from duties

In this case, the Constitutional Court had to assess the constitutionality of the legal regulation governing accounting to the Seimas by the heads of state institutions (with the exception of courts), including the Prosecutor General, who are appointed by the Seimas or whose appointment requires the assent of the Seimas, for the activity of their respective institution. The Constitutional Court recognised that the provisions of the Statute of the Seimas were in conflict with the Constitution insofar as such provisions granted the powers to the Seimas to adopt a resolution on either giving its assent or not giving its assent to an annual report submitted by the head of an institution about its activities, who is either appointed by the Seimas or whose appointment requires the assent of the Seimas. Therefore, Article 1 of the Seimas resolution of 1 October 2013 whereby the Seimas did not give its assent to the 2012 annual report of the activities of the Prosecution Service was also ruled to be in conflict with the Constitution. By this ruling, the Constitutional Court recognised that the provision of the Law on the Prosecution Service by which the Prosecutor General gives an account of the activities of the Prosecution Service to the Seimas by submitting an annual report of the activities of the Prosecution Service and the provision of the same law that the Seimas may propose that the Prosecutor General should be released from duties are not in conflict with the Constitution.

While assessing the constitutionality of the provisions of the Statute of the Seimas, the Constitutional Court noted that the Seimas—the representation of the Nation—must have exhaustive and objective information about the processes taking place in the state and society, about the situation in various spheres of life of the state and society and about emerging problems; having such information is a necessary precondition for an effective activity of the Seimas in the interests of the Nation and the State of Lithuania and for proper fulfilment of its constitutional obligation. The Constitutional Court also noted that, in a democratic state under the rule of law, officials and institutions must follow law in their activities; in case state officials perform their duties according to the Constitution and law, and when they act in the interests of the Nation and the State of Lithuania, they must be protected from any pressure and unreasonable interference in their activity and, when fairly exercising their duties, they must not receive any threat against their person, their rights or their freedoms.

Full-text in English is available here.

  1. 11-06-2015 ruling No. KT17-N11/2015, case No. 4/2012-13/2012 – On the transfer of a share of the personal income tax to municipal budgets

In this ruling, the legal regulation governing the transfer of a share of personal income tax to municipal budgets ruled in conflict with the Constitution. The matter dealt with in this case was related to the equalisation of the financial capacity of municipalities. In order to carry out such equalisation, municipalities used to be transferred different amounts of shares (in percentage terms) of the personal income tax collected by them on their territories.

The Constitutional Court held that the absence of any clear statutory criteria for determining and changing a share of personal income tax allocated to municipalities made it unclear whether the financial situation of those municipalities whose share of personal income tax was transferred to the account of the State Treasury to support other municipalities was indeed better, and how much better, if compared to the municipalities receiving such support. The Constitutional Court noted that, under the impugned legal regulation, it was not assessed whether the situation of the contributing municipalities would not deteriorate to the extent lower than that of those being supported. The absence of the criteria in question precluded an objective assessment of the changes in the municipal needs for revenues as well as of the capabilities of certain municipalities to contribute in supporting financially weaker ones. The Constitutional Court held that such a legal regulation created preconditions for distorting the essence of the equalisation mechanism and, thus, could not be viewed as providing preconditions for ensuring a fully-fledged funding of municipal functions.

In view of the fact that, in case this ruling had been officially published right after its official pronouncement at the hearing of the Constitutional Court, the legal regulation governing municipal funding would have become unspecified due to which the allocation of funds to municipalities would have been disturbed in essence, the Constitutional Court postponed the official publication of this ruling in the Register of Legal Acts until 2 January 2016.

Full-text in English is available here.

Suggested Citation: Dainius Žalimas, Ingrida Danėlienė and Vaidas Lubauskas, Developments in Lithuanian Constitutional Law: The Year 2015 in Review, Nov. 23, 2016, at: http://www.iconnectblog.com/2016/11/developments-in-lithuanian-constitutional-law-the-year-2015-in-review

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Published on November 22, 2016
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