Case No 23/94

Case No 23/94 Case No 23/94 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of the Law of the Republic of Lithuania 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' of 4 July 1994 and the Seimas Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares, also Transgressions of Legal Protection" ' of 12 July 1994 with the Constitution of the Republic of Lithuania 1 December 1994, Vilnius The Constitutional Court of the Republic of Lithuania, composed from the Justices of the Constitutional Court Algirdas Gailiûnas, Kæstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavièius, Stasys Staèiokas, Teodora Staugaitienë, Stasys Ðedbaras and Juozas Þilys, the secretary of the hearing - Rolanda Stimbirytë, the petitioner - Seimas members Kæstutis Skrebys and Vidmantas Þiemelis, representatives of a group of Seimas members, the party concerned - deputy Chairman of the Seimas Juozas Bernatonis, representative of the Seimas, pursuant to the first part, Article 102 of the Constitution of the Republic of Lithuania and Part 1, Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public court hearing of 29 November 1994 conducted the investigation of Case No 23/94 subsequent to the petition submitted to the Court by a group of Seimas members requesting to investigate if the Law of the Republic of Lithuania 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' of 4 July 1994 and the Seimas Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' of 12 July 1994 are in compliance with the Constitution of the Republic of Lithuania. The Constitutional Court has established:

1. On 4 July 1994 the Seimas adopted Law 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' (Official Gazette "Valstybës Þinios" No 51-953, 1994), and on 12 July 1994 passed Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' (Official Gazette "Valstybës Þinios" No 54-1023, 1994). The petitioner - a group of Seimas members request the Constitutional Court to examine if the Law 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' of 4 July 1994 and the Seimas Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' of 12 July 1994 are in conformity with Articles 3, 9, 33 and 67 of the Constitution.
2. The petitioner's request is based on the following arguments. The initiative group of citizens of the Republic of Lithuania, conforming to then valid Law of the Republic of Lithuania on Referendum (Official Gazette "Valstybës Þinios" No 33-445, 1989; No 4-86, No 31-755, 1990; No 18-515, 1992) and procedure and terms prescribed by this Law, realized the initiative right to announce a referendum vested in citizens: filed requisite documents for the submittal for referendum of the Constitutional Law "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection". This had been done prior to the enforcement of the Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum" of 15 June 1994 (Official Gazette "Valstybës Þinios" No 47-870, 1994). This fact has been also confirmed in the resolving part of the decision "On the conclusions concerning the documents of the initiative group for the announcement of referendum" passed on 7 July 1994 by the Central Electoral Committee which had been commissioned to check the documents submitted by the initiative group under the Seimas Resolution of 21 June 1994 "On the documents for the announcement of referendum submitted by the initiative group", which reads: "to confirm the conclusion that the documents submitted by the initiative group containing the requirement to call a referendum on the constitutional Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection", is consistent with the Law of the Republic of Lithuania on Referendum ..." The petitioner maintains that the Seimas by Resolution of 12 July 1994 'On Referendum on the Promulgation of the Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' ignored the initiative right to call referendum vested in the citizens by the first, third and fourth parts of Article 9 of the Constitution,"...because, according to said Resolution, the referendum was announced on another issue than it had been requested by the citizens. Under item 1 of the mentioned act, a referendum shall be announced 'on the provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection"', whereas in item 3 thereof it is resolved 'to submit for referendum eight provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' . Furthermore, by item 2 of said Resolution the Seimas "also resolved to hold that the proposal of the initiative group concerning a constitutional law or constitutional provisions was not in conformity with Article 69 of the Constitution of the Republic of Lithuania". Although this question was not considered at a sitting, the Seimas decided that "provisions of the law of the Republic of Lithuania shall be submitted for referendum". In the petitioner's opinion, this "restricts the sovereign right of the People to directly participate in the government of their State, established in Article 33 of the Constitution which forbids to restrict the sovereign powers of the People. It should also be noted that legal acts enumerated in Article 150 of the Constitution have already been ascribed to constitutional laws by the direct manifestation of the People's will..." The above mentioned Resolution of the Seimas "...has established additional conditions for the conduction of a referendum - item 3 of said Resolution has determined that the provisions of the law shall be submitted for referendum "unless these provisions of the law are adopted by the Seimas of the Republic of Lithuania until the referendum day." ' The petitioner also maintains that the Seimas, "while adopting items 2 and 3 of said Resolution, violated the provisions of the second and third parts of Article 12 of the specified in the preamble Law on Referendum to which the Seimas members had conformed in the adoption of this act and which regulated the procedure for the adoption of a Seimas resolution on the requirement to call a referendum. On 15 June 1994 the Seimas adopted the Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum", which entered into force on 22 June
3. Following the petitioner, "upon the enforcement of new legal norms regulating the procedure for realization of the initiative right to call a referendum, also the procedure for the announcement and execution of a referendum, the legal fact had already occurred - the citizens' initiative right to call a referendum had already been realized in the procedure prescribed by the law. Therefore, the application of newly adopted legal norms to the citizens' demands to call a referendum which had been already been realized, implies their application to facts and legal consequences that had appeared prior to the enforcement of a normative act. In the petitioner's opinion, the Law of 4 July 1994 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ', "...according to the scope of regulation, contradicts Articles 3 and 9 of the Constitution as it restricts the People's sovereign powers to call a referendum. The above mentioned Law prescribes that the provisions of the first, second, third and fourth parts of Article 9 as well as third part of Article 11 of said Law shall not be applied for the citizens' initiatives to call a referendum the realization of which had been started prior to the enforcement of the 15 June 1994 Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum". However, the provisions of part 1, Article 1; parts 2 and 3 of Article 3; part 4 of Article 4; part 1 of Article 7; Article 8; parts 1 and 2 of Article 9; parts 1, 2 and 3 of Article 10; and part 2 of Article 13 of then valid Law of the Republic of Lithuania on Referendum - had already been realized until the specified date, therefore the preliminary investigation of the citizens' proposal had to be started in the procedure prescribed by Article 11 of the mentioned Law and the referendum had to be announced in the procedure established in Articles 12 and 13 of the same Law." During the court hearing the petitioner's representatives actually repeated these motives specified in the petition. Conforming to the above mentioned motives, the petitioner and his representatives request the Constitutional Court to examine if the 4 July 1994 Law 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' and the Seimas Resolution of 12 July 1994 'On Referendum on the Promulgation of the Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' are in compliance with Articles 3, 9, 33 and 67 of the Constitution of the Republic of Lithuania.
4. During the court hearing, a representative of the party concerned explained that, in his opinion, the petitioner's request is not justified. By way of answering to the petitioner's statement that the Law according to the scope of regulation contradicts Articles 3 and 9 of the Constitution he submitted the following arguments. First, the Law in dispute was not adopted for one particular referendum because signatures for the referendum on pre-term elections to the Seimas were already being collected at that time. Second, the Law specified that these amendments concerning the collection of signatures and their verification would not be applied to already started initiatives for referenda. Third, although the Constitutional Court had already investigated the petition of Seimas members and on 22 July 1994 passed the ruling on the compliance of the 15 June 1994 Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum" with the Constitution, the petitioner however has doubts as to the constitutionality of the application of this Law. Fourth, the legislation process concerning the adoption of laws in the Seimas as well as by referendum consists of several stages the main of which are as follows: realization of the initiative right of legislation, consideration of a draft, adoption of a draft, promulgation and enforcement of the adopted law. The Law on Referendum not only establishes the procedure for expressing initiative, collection of signatures and their presentation, but also the procedure for the announcement of a referendum, consideration of the submitted draft and its adoption as well as the enforcement of an act adopted by referendum. That is why the Seimas passed the Law in dispute - in order new norms would not be applied to the stage of expressing initiative. Fifth, the petitioner's statement that the provisions of part 1, Article 1; parts 2 and 3 of Article 3; part 4 of Article 4; part 1 of Article 7; Article 8; parts 1 and 2 of Article 9; parts 1, 2 and 3 of Article 10; and part 2 of Article 13 could not be applied is not justified in any way because said provisions had already been realized. The representative of the party concerned has also explained the essence of the amendments to the Law on Referendum; The first sentence of the first part of Article 1 only echoes the constitutional norms that were valid already prior to its amendment; Parts 2 and 3 of Article 3 establish the procedure for referendum campaign. These norms have been particularized by specifying that the procedure for the campaign in mass media shall be determined by the Central Electoral Committee; The norms of the fourth part of Article 4 are not related to the realization of the initiative right vested in the citizens, they only prescribe rights and duties for mass media during referendum; Article 7 has been recognized null and void, whereas the norm of the first part of Article 7 mentioned by the petitioner has been repeated in Article 1; Only two notions from Article 8 have undergone amending, namely: the notion "for the deputies of the Supreme Council" has been replaced by "for Seimas members" and the notion "for citizens" has been used instead of "for the People"; In the first part of Article 10 the non-existing institution "Supreme Council" was superseded by the notion "Chairman of the Seimas", whereas the second part was subjected to no changes; in the third part the notion "Presidium of the Supreme Council" was substituted by the "Central Electoral Committee"; The second part of Article 13 establishes that initiators of referendum shall make amendments to the draft and shall publicize them within 15 days before referendum. Under the earlier valid norm, the signatures could be collected in support of one draft whereas another draft could be announced, which was not in compliance with the Constitution of the Republic of Lithuania. Sixth, the situation was such that some norms of the earlier Law on Referendum were no longer valid and could no longer be applied. Realizing that, the legislators adopted amendments to the Law on Referendum. In the opinion of the representative of the party concerned, many of the petitioner's statements concerning the Seimas Resolution 'On Referendum on the Promulgation of the Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ' of 12 July 1994 are also not justified. On 22 June 1994, the initiative group submitted the last draft to the Seimas. The initiators proposed to submit for referendum a draft constitutional law, however it would have contradicted Article 69 of the Constitution, in the third part of which it is established: "The Seimas shall establish a list of constitutional laws by a three-fifths majority vote of the Seimas members". The Constitutional Court in its Ruling of 8 November 1993 on the compliance of the Law of the Republic of Lithuania "On Partial Amending and Appending of the Law of the Republic of Lithuania on Elections to the Seimas" with the Constitution of the Republic of Lithuania stated that: "The constituent parts of the Constitution shall primarily be laws established in Article 150 of the Constitution. Only the Seimas is empowered with enumerating other constitutional laws." Since such a list did not exist at the moment when the draft was submitted, the legislator could not call the submitted for referendum draft constitutional. The Seimas, conforming to the second part of Article 12 of the Law on Referendum, maintained that "the proposal of the initiative group concerning the constitutional law of the Republic of Lithuania or constitutional provisions was not consistent with Article 69 of the Constitution of the Republic of Lithuania". Such right of the Seimas was also recognized by the Constitutional Court Ruling of 22 July
5. Therefore, the petitioner's statement that another question was submitted for referendum, does not fit to reality. The representative of the party concerned has also acknowledged that the provision of item 3 of the Seimas Resolution in dispute stating that the provisions shall be proposed for referendum "unless they are adopted by the Seimas until the referendum day", is not in compliance with the Constitution. Conforming to these arguments, the representative of the party concerned requests the Constitutional Court to recognize that the 4 July 1994 Law of the Republic of Lithuania 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' and the Seimas Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares, also Transgressions of Legal Protection" ' of 12 July 1994 are consistent with the Constitution of the Republic of Lithuania. The Constitutional Court holds that:
6. On the compliance of the 4 July 1994 Law of the Republic of Lithuania 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' with the Constitution of the Republic of Lithuania. The Constitutional Court in its Ruling of 16 March 1994 stated that "in the sphere of legal regulation a general rule is valid: a law has no retroactive validity. The essence of this rule is that laws, except some particular cases, usually "do not go to the past", i. e. they are not applied to legal facts, that have already occurred, and legal consequences that existed prior to the enforcement of the newly adopted normative act" (Official Gazette "Valstybës Þinios") No 22-366, 1994). This provision was once again repeated in the Constitutional Court Ruling of 15 July 1994 (Official Gazette "Valstybës Þinios" No 56-1103, 1994). First of all, it must be noted that, at the time of the adoption of the law in dispute, the legal relations concerning initiation and organization had not finished yet, therefore there were no grounds for speaking about the legal consequences that appeared then. This is concerned with the fact that relations regarding organization of referendum are continuous legal relations. Besides, in the case in question, certain amendments to the Law on Referendum had to be made in order to ensure the positive run, i. e. continuity, of said relations. Such objective necessity was preconditioned by the Constitution and new structure of the Parliament. Consequently, the adoption of such amendments by itself did not imply the retroactive validity of new norms, because at the moment in question concrete legal consequences did not actually exist yet. Secondly, the statement that making one's initiative to organize a referendum already implies the beginning of a referendum, is not justified. The formation of an initiative group, collection of citizen's signatures for organizing a referendum, filing of documents and their verification and consideration - these are only obligatory actions in the process of referendum oranization. The Seimas resolution to announce a referendum may be adopted only after the above mentioned actions have been performed (with the exception of cases when a referendum is announced on the Seimas initiative). It should be noted, that failing to perform the most important preliminary actions (e. g. failing to collect the necessary number of citizens' signatures within the established period of time) would mean the breach of organizational process of referendum. After the Seimas passes a resolution to announce a referendum, direct preparation for a referendum shall start - committees for referendum and electoral districts shall be formed, voter lists shall be verified, referendum campaign shall take place. Referendum (i. e. citizens' vote) shall be conducted on the day specified in the Seimas resolution and at the time prescribed by the law. Only in cases and procedure provided by law when voting takes place by post, citizens shall participate in referendum earlier than the appointed day. Thirdly, the Law in dispute itself prescribed that the norms which might change already existing legal relations concerning referendum organization could not be applied. Namely, it was established that "the provisions of parts 1, 2, 3 and 4 of Article 9, also part 3 of Article 11 of this Law would not be applied to the citizens' initiatives to announce a referendum the implementation of which had been started before the enforcement of amendments to the Law on Referendum". It should be noted, that this is all the contents of the Law in dispute. Therefore, the petitioner's statement that "this Law, according to the scope of regulation, contradicts Articles 3 and 9 of the Constitution as it restricts the power of the People to call a referendum" is not grounded on legal motives. By the Law in dispute the Seimas only realized the right vested therein to establish the procedure for the enforcement of the already adopted law. Therefore, the 4 July 1994 Law 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' is in conformity with the Constitution.
7. On the compliance of the Seimas Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares, also Transgressions of Legal Protection" ' of 12 July 1994 with the Constitution of the Republic of Lithuania
9. The petitioner maintains that under items 1 and 3 of said Resolution "the referendum was announced on another than required by the citizens issue". The petitioner bases his statement on the fact that the title of the draft law was specified by adding the word "provisions" (i. e. "provisions ... of the law"). The representative of the party concerned explained that the concretization of the title of the law conformed to the norm of the fourth part of Article 69 of the Constitution which reads that "provisions of the laws ... may also be adopted by referendum". This question has already been resolved in the Constitutional Court Ruling of 22 July 1994 'On the compliance of the provisions of items 1, 9, 12 and 39 of the Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum" of 15 June 1994, by which Articles 1, 9, 12 and 32 of the Law on Referendum have been amended or appended, with the Constitution of the Republic of Lithuania' (Official Gazette "Valstybës Þinios" No 57-1120, 1994). The second paragraph of item 2 of the argumentation of said Ruling runs: "... the notion "provisions of laws" used in the Constitution may be understood equally as an integral law as well as separate norms of a law. A law as well as its constituent parts always consist of certain provisions that become legal norms only in the process of legislation. However, it does not mean, that a law and provisions of laws have different legal power in the stage of their submittal for referendum as well as after their adoption by referendum". The Constitutional Court did not establish that the Seimas had changed the contents of the draft law submitted for referendum, i. e. concrete norms of said draft law. Thus, the petitioner's statement that "referendum was announced on another than required by the citizens' question" is not justified. The petitioner argues that item 2 of the Resolution in dispute has unlawfully changed the form of the act proposed for referendum: i. e. "provisions of the laws of the Republic of Lithuania were submitted" for referendum instead of a constitutional law (or constitutional provisions). Constitutional laws are mentioned in Articles 69 and 72 of the Constitution. Said laws differ from other laws primarily by the procedure of their adoption and amendment. Constitutional laws shall be deemed adopted if more than half of all the members of the Seimas vote in the affirmative; they shall be amended by at least a three-fifths majority vote of all the Seimas members. Meanwhile, other laws (including their amendments) shall be deemed adopted if the majority of the Seimas members participating in the sitting vote in the affirmative. Furthermore, said procedure for the adoption and amendment of laws is concerned with the peculiar place these laws occupy in the legal system and specific relations the norms of constitutional laws are in with constitutional norms. In Article 69 of the Constitution it is set forth: "The Seimas shall establish a list of constitutional laws by a three-fifths majority vote of the Seimas members." The Constitution does not prescribe another procedure for the establishment of constitutional laws than the above mentioned one and the procedure for making amendments to the Constitution. Constitutional norms are equally binding to all legal persons, including groups for initiating a referendum as well as citizens' groups of any size. The later may not be either identified with the People or speak on behalf of the People. The People usually express their will directly by referendum or during direct universal elections, i. e. only after referendum or direct universal elections People's will with regard to concrete issues becomes known. Parliament - democratically elected People's representative shall indirectly express the People's will. Thus, according to the Constitution, only the Seimas shall establish a list of constitutional laws. Consequently, in the above mentioned case the Seimas, while crossing out the word "constitutional" from the title of the draft law proposed for referendum, acted in compliance with the powers vested therein. This fact has already been stated in the Constitutional Court Ruling of 8 November 1993 'On the compliance of the Law of the Republic of Lithuania "On Partial Amending and Appending of the Law of the Republic of Lithuania on Elections to the Seimas" with the Constitution of the Republic of Lithuania'.
11. The petitioner maintains that the provision of item 3 of the Resolution in dispute "unless the provisions of this Law are adopted by the Seimas until the referendum day" implies the establishment of additional conditions for the execution of referendum, which contradicts the Constitution. This question has been resolved on its merits in the Constitutional Court Ruling of 22 July 1994 'On the compliance of the provisions of items 1, 9, 12 and 39 of the Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum" of 15 June 1994, by which Articles 1, 9, 12 and 32 of the Law on Referendum have been amended or appended, with the Constitution of the Republic of Lithuania.' Under item 7 of this Ruling it has been recognized that "the norm of item 12 which appended Article 12 of the Law on Referendum by the third part", contradicts the Constitution. In said Constitutional Court Ruling it was noted that "the Constitution, however, does not prescribe that the Seimas may do any other activities or accept for consideration the draft legal act submitted for referendum, thus restricting the citizens' right to initiate a referendum and voice their will with regard to the submitted draft law or a draft of any other legal act." The provision in dispute of the Seimas resolution in essence echoed the norm of the 15 June 1994 Law "On Amending and Appending the Law of the Republic of Lithuania on Referendum" which by the Constitutional Court Ruling has been recognised as contradicting the Constitution. According to Article 72 of the Law on the Constitutional Court, this provision is null and void and may not be applied. Pursuant to the above mentioned motives, the Constitutional Court has drawn the conclusion that the Seimas Resolution of 12 July 1994 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares as well as Transgressions of Legal Protection" ', with the exception of the provision of item 3 "unless these provisions of the law are adopted by the Seimas of the Republic of Lithuania until the referendum day" which under the Constitutional Court Ruling of 22 July 1994 is null and void, does not contradict the Constitution. Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court has passed the following ruling: 1.To recognize that the Law of the Republic of Lithuania 'On the Procedure for the Implementation of the Law of the Republic of Lithuania "On Amending and Appending the Law of the Republic of Lithuania on Referendum" ' of 4 July 1994 is in conformity with the Constitution.
12. To recognize that the Seimas of the Republic of Lithuania Resolution 'On Referendum on the Promulgation of Provisions of the Law of the Republic of Lithuania "On Unlawful Privatization, Devaluated Accounts and Shares, also Transgressions of Legal Protection" ' of 12 July 1994, with the exception of the provision of item 3 "unless these provisions of the law are adopted by the Seimas of the Republic of Lithuania until the referendum day" which under the Constitutional Court Ruling of 22 July 1994 is null and void, does not contradict the Constitution of the Republic of Lithuania This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court: Algirdas Gailiûnas Kæstutis Lapinskas Zigmas Levickis Vladas Pavilonis Pranas Vytautas Rasimavièius Teodora Staugaitienë Stasys Ðedbaras Juozas Þilys