Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
CONCLUSION
On the inquiries of the President of the Republic
whether the Law of the Republic of Lithuania on
Elections to the Seimas was violated during the
elections of Seimas members
23 November 1996, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Zigmas Levickis, Augustinas Normantas, Vladas
Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius,
Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - Armanas Abramavičius, the representative
of the President of the Republic, the Adviser of the President
on State and Legal Issues,
the representatives of the Central Electoral Committee -
Zenonas Vaigauskas, the Chairman of the Central Electoral
Committee, Gintaras Goda and Isaakas Kaganas, both members of
the Central Electoral Committee,
pursuant to Part 3 of Article 105 of the Constitution of
the Republic of Lithuania and Part 2 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, in its
public hearing on 21 November 1996 conducted the investigation
of Case No 15/96 subsequent to the inquiries submitted by the
petitioner - the President of the Republic of Lithuania -
whether the Law of the Republic of Lithuania on Elections to
the Seimas during the elections of Seimas members was violated
in Baltija Electoral Area No. 20 and Pasvalys-Panevėžys
Electoral Area No. 47 and, following the complaint of the
Chairman of the Union for Social Justice, whether the Law of
the Republic of Lithuania on Elections to the Seimas was
violated.
The Constitutional Court
has established:
I
On 25 October 1996 the elections to the Seimas took place.
On 10 November 1996 the repeat voting took place in
one-candidate electoral areas. The Central Electoral Committee
by its 16-17 November 1996 decisions confirmed final electoral
results (Official Gazette "Valstybės žinios", No. 111-2529,
1996).
The President of the Republic appealed to the
Constitutional Court with his inquiries whether the Law of the
Republic of Lithuania on Elections to the Seimas was violated
in Baltija Electoral Area No. 20 and Pasvalys-Panevėžys
Electoral Area No. 47 during the elections of Seimas members
and, following the complaint of the Chairman of the Union for
Social Justice, if the Law of the Republic of Lithuania on
Elections to the Seimas was not violated.
The Constitutional Court by its 21 November 1996 decision
joined the inquiries of the President of the Republic into one
case.
II
The representative of the petitioner explained during the
process of judicial investigation on what grounds the President
of the Republic appealed to the Constitutional Court with his
inquiries if the Law on Elections to the Seimas was violated
during the elections of Seimas members.
The representatives of the Central Electoral Committee
explained in the court hearing on what arguments the decisions
of the Committee had been grounded.
The Constitutional Court
holds that:
One of fundamental characteristics of a democratic state
is democratic elections of representative institutions of state
power. It is through elections that every citizen accomplishes
his right to participate in running his country along with the
other citizens.
Principal provisions of the right to vote are consolidated
in the Constitution of the Republic of Lithuania. Part 1 of
Article 55 of the Constitution establishes that Seimas members
shall be elected four a four-year term on the basis of
universal, equal, and direct suffrage by secret ballot. In
particular, the Law on Elections to the Seimas regulates the
procedure for organisation and holding of elections.
When democratic elections are held, the mechanisms of
publicity and control are of crucial importance. It should be
noted that the Law on Elections to the Seimas regulates in
detail the guarantees to implement the publicity principle, as
well as those for the elections of representatives, and those
for the rights of elections observers.
The active participation of elections observers, the press
and representatives of other public mass media in the process
of elections within the limits provided by law ensures that the
will of voters will be appropriately expressed during the
elections of representatives. The remarks of the aforementioned
representatives permit to establish violations of the Law on
Elections to the Seimas. In this view, legal procedure
regarding appeals against decisions of various levels of
electoral committees in court as consolidated in the Law on
Elections to the Seimas are of much importance.
Part 5 of Article 85 of the Law on Elections to the Seimas
stipulates: "Any political party, or political organisation
which nominated candidates for Seimas members, or candidates
for Seimas members may lodge complaints concerning decisions of
the Central Electoral Committee or its refusals to investigate
complaints considering violations of the law on elections with
the Seimas or the President of the Republic within 24 hours
after the publication of official results of the elections. In
such cases, within 48 hours, the Seimas or the President of the
Republic shall appeal to the Constitutional Court with the
inquiry regarding violations of the Law on Elections to the
Seimas.
Part 2 of Article 94 of the said law establishes: "The
Constitutional Court shall investigate and assess the decision
of the Central Electoral Committee or its refusal to
investigate complaints regarding violations of the Law on
Elections to the Seimas in the cases when the decisions were
adopted or other deeds of the Committee were accomplished after
the termination of the elections."
1. On the inquiry of the President of the Republic whether
the Law on Elections to the Seimas was violated in Baltija
Electoral Area No. 20.
E. Gentvilas, the Chairman of the Liberal Union of
Lithuania, a candidate for the Seimas in Baltija Electoral Area
No. 20 and A. Ramanauskas, the representative of the Liberal
Union of Lithuania in the Central Electoral Committee, ground
their complaints on remarks of the elections observers
concerning the electoral results entered in the vote
calculation records. In their opinion, even minute arithmetic
mistakes may have influenced the final results of the
elections.
Part 4 of Article 85 of the Law on Elections to the Seimas
prescribes: "While investigating a complaint regarding the
decision of the area electoral committee concerning writing
down of vote calculation records of the electoral area, the
Central Electoral Committee may recalculate the ballot-papers
presented by the area electoral committee, and shall, upon
establishing an arithmetic mistake in the vote calculation
records, or incorrectly calculated valid and invalid
ballot-papers, write down additional vote calculation records
of the electoral area and attach it to the vote calculation
records of the electoral area."
The Central Electoral Committee has considered the
arguments indicated in the aforesaid complaints. When adopting
its decision, it based itself on the fact that a small
difference in votes in itself does not provide with the grounds
to recalculate the ballot-papers. It is impossible not to agree
with such an argument of the Central Electoral Committee as
Part 4 of Article 85 of the Law on Elections of the Seimas
entitles the Central Electoral Committee to decide by itself in
what cases the ballot-papers are to be recalculated.
D. Aleksandrovas and M. Girdziuška, the representatives
for the Liberal Union of Lithuania and observers in Debrecenas
Electoral District No. 36, and V. Simanauskas, the observer in
Rumpiškės Electoral District No. 22, expressed their remarks on
alleged violations in the vote calculation records only after
the preliminary results of the elections in the area were
already known. They had signed in the vote calculation records
of the aforesaid electoral districts and had not given any
remarks. The Central Electoral Committee, by adopting its
decision to refuse to recalculate the ballot-papers in Baltija
Electoral Area No. 20, actually based itself on the indicated
circumstances. The arguments which may deny the validity of the
Central Electoral Committee decision have not been presented,
therefore there are no grounds to conclude that the Law on
Elections to the Seimas was violated.
The Central Electoral Committee was also informed that the
seal of the electoral documents sack was damaged in Dainava
Electoral District No. 32. The Central Electoral Committee
investigated and assessed this case. Basing itself on the fact
that the vote calculation records of electoral districts had
been written down until that case and there had been no remarks
as regards that, the Central Electoral Committee held that
there exist no grounds to recalculate ballot-papers because of
the aforementioned damaged seal. It is impossible not to agree
with this conclusion of the Central Electoral Committee.
Taking account of the motives and arguments set forth, it
should be concluded that the decision of the Central Electoral
Committee to refuse to recalculate the ballot-papers in Baltija
Electoral Area No. 20 is in compliance with the Law on
Elections to the Seimas.
2. On the inquiry of the President of the Republic whether
the Law on Elections to the Seimas was violated in
Pasvalys-Panevėžys Electoral Area No. 47.
1. It was indicated in the complaint of the Presidium of
the Council of the Democratic Labour Party of Lithuania (DLPL)
that on 16 November 1996 the Central Electoral Committee had
adopted, in their opinion, an illegal decision "Not to satisfy
the requests of the Presidium of the Council of the Democratic
Labour Party of Lithuania and the observers in the electoral
area No. 47 to recalculate the ballot papers in
Pasvalys-Panevėžys Electoral Area No. 47, as well as to annul
the election results in the said electoral area."
R. L. Butienė, the representative of the DLPL for the
elections in the electoral committee of Pasvalys-Panevėžys
Electoral Area No. 47, appealed to the Central Electoral
Committee because of violations which, in her opinion, had been
made during the elections and requested to recalculate all the
ballot-papers of the said electoral area. She grounded her
request on the motive that the area electoral committee had
recalculated only a small portion of the ballot-papers of the
electoral districts which she had indicated and the said
committee established that three thereof were invalid even
though previously they had been recognised as valid in favour
of the candidate for Seimas members A. Matulas. The
representative for the elections also informed that violations
of analogous character had occurred in the Pušalotas,
Narteikiai, Grūžiai, Kalnas, Valakėliai, Gulbinėliai, and other
district electoral committees.
The area electoral committee refused to look through once
again all the list of voters in Karsakiškis electoral district
even though R. Bružis, an observer, and A. Varvuolis and G.
Šlekonienė, as members of the electoral committee, requested to
do so. They grounded their request on the motive that in the
list of voters one voter had signed for several persons who did
not take part in the elections, thus there might have been more
such violations.
Having investigated the complaint of the Presidium of the
Council of the DLPL, the Central Electoral Committee noted:
"The area electoral committee has recalculated the
ballot-papers of five electoral districts. The number of the
ballot-papers of four electoral districts coincided with the
number of ballot-papers indicated in the vote calculation
records. There appeared a small inaccuracy in one electoral
district. The area election committee refused to further check
the ballot-papers as the observers of the elections did not
request to do so."
Almost in all electoral districts the observers
participated in pursuance of Article 60 of the Law on Elections
to the Seimas, and they confirmed that by their signatures and
did not put down any remarks as regards violations of the Law
on Elections to the Seimas. The remarks and special opinions of
the elections observers and the committee members had been
attached to the vote calculation records of some electoral
districts. Therefore the area electoral committee recalculated
the ballot-papers of the electoral districts on the work of
which particular remarks were expressed. The request to
recalculate all ballot-papers of the districts of electoral
area was presented only after it had become evident that the
difference in votes of those who voted for the candidates for
Seimas members is a small one. As it was mentioned, according
to the Law on Elections to the Seimas, a small difference in
votes is not the basis in itself to recalculate the
ballot-papers. The complaint of the Council of Presidium of the
DLPL does not give any other data concerning violations of the
Law on Elections to the Seimas.
2. The complaint of the Council of Presidium of the DLPL
also indicates that on 9 November 1996 Lithuanian Television in
its television programme "Panorama" revealed discrediting
material in respect of the candidate for Seimas members by
which it was attempted to influence the potential voters. In
the opinion of the Presidium, thereby Article 52 of the Law on
Elections to the Seimas was grossly violated.
Part 2 of Article 52 of the Law on Elections to the Seimas
stipulates: "The discrediting material in respect of the
candidate shall be recognised such a material whereby it is
attempted to influence the voters so that they did not vote for
a particular candidate and wherein the negative news
illustrating the candidate is imparted. The opinion
(differently from the news, the criteria of the truth shall not
be applied to the opinion), as well as the negative one,
publicised by public mass media in regard of the candidate
shall not be recognised as a discrediting material and this
does not entitle the candidate to require to publicise the
counterclaim opinion."
In the opinion of the Presidium of the Council of the
DLPL, the publication of the discrediting material is a gross
violation of the Law on Elections to the Seimas, and this may
serve as the grounds to recognise the results of the elections
invalid as it is established in Part 1 of Article 90 of the Law
on Elections to the Seimas.
The norm of Part 1 of Article 90 of the Law on Elections
to the Seimas grants the Central Electoral Committee wide
discretionary rights as regards the recognition of the results
of elections invalid. The provision of the norm "gross
violations of this law made in the electoral district and
electoral area" is a sign to be assessed the content of which
must be established by the Central Electoral Committee by
taking account of particular circumstances, e.g., what article
of this law was violated, the character of violation, who made
the violation, what effects that could have made or made, etc.
Only the whole complex of the circumstances which were
established by the Central Electoral Committee provides with
the grounds to decide in every particular case if the violation
is to be treated a gross one.
Having established that the violation is a gross one, it
must be assessed whether it "had a decisive influence upon the
results of the elections". This is also the matter of the
assessment of the circumstances stated by the Central Electoral
Committee.
Having established that the violations of the Law on
Elections to the Seimas were gross ones and had a decisive
influence upon the results of the elections, the Central
Electoral Committee is entitled to recognise the elections
invalid. Assessing such a wording of the norm of Part 1 of
Article 90 of the Law on Elections to the Seimas, there exist
assumptions that this norm does not secure entirely a thorough
legal regulation of settling of the conflicts which arise in
the process of elections.
The representatives of the Central Electoral Committee
pointed out in the hearing of the Constitutional Court that the
Central Electoral Committee assessed the subject shown on
Lithuanian Television in the 9 November 1996 programme
"Panorama", i.e. on the day when, according to Article 55 of
the Law on Elections to the Seimas, the campaigning was
prohibited and adopted the decision that that was not a
violation of the Law on Elections to the Seimas.
In the process of judicial investigation the
representatives of the Central Electoral Committee indicated
other circumstances as well which were of significance when
deciding the issue whether the subject shown on the Lithuanian
Television in its programme "Panorama" had a decisive influence
(the data on voting by mail, etc.) upon the electoral results.
The Central Electoral Committee did not establish that the said
subject had had a decisive influence on the electoral results.
It should be noted that the Law on Elections to the Seimas
does not provide for sufficient legal guarantees which could
prevent from publicising discrediting material during the time
when the campaigning is prohibited.
Taking account of the arguments and motives set forth, it
should be concluded that the 16 November 1996 decision of the
Central Electoral Committee to refuse to recalculate the
ballot-papers in Pasvalys-Panevėžys Electoral Area No. 47 and
to annul the results of elections of this electoral area is in
compliance with the Law on Elections to the Seimas.
3. On the inquiry of the President of the Republic
subsequent to the complaint of the Chairman of the Union of
Social Justice of Lithuania whether the Law on Elections to the
Seimas was violated.
In response to the 18 November 1996 complaint of K. J.
Jocius, the Chairman of the Union of Social Justice of
Lithuania, the President of the Republic appealed to the
Constitutional Court with his inquiry on violations of the Law
on Elections to the Seimas. The complaint points out that after
the Central Electoral Committee had announced the official
results of the elections it became evident that previous
complaints of the chairman and gross violations of the Law on
Elections to the Seimas indicated therein had been left out of
account.
It should be noted that the Central Electoral Committee
investigated the 16 October 1996 public statement of the
Chairman of the Union of Social Justice of Lithuania, as well
as his 24 October 1996 statement. The decisions of the Central
Electoral Committee were not appealed against pursuant to the
procedure established by law.
On 17 November 1996 the Central Electoral Committee
publicised the final results of the elections of Seimas
members. The 18 November 1996 complaint of the Chairman of the
Union of Social Justice of Lithuania indicates that after the
official results of the elections had been publicised it became
evident that previous complaints of that organisation and gross
violations of the Law on Elections to the Seimas indicated
therein had been left out of account. However, the Chairman of
the Union of Social Justice of Lithuania did not appeal to the
Central Electoral Committee as regards the official results of
the elections therefore the Central Electoral Committee did not
investigate any complaint of his.
Part 2 of Article 94 of the Law on Elections to the Seimas
establishes that the Constitutional Court shall investigate and
assess the decision of the Central Electoral Committee or its
refusal to investigate complaints regarding violations of the
Law on Elections to the Seimas in the cases when the decisions
were adopted or other deeds of the Committee were accomplished
after the termination of the elections. The complaint
subsequent to which the President of the Republic appealed to
the Constitutional Court with the inquiry on violations of the
Law on Elections to the Seimas contains no indication to any
concrete decision or act of the Central Electoral Committee. As
there is no matter subject to investigation, i.e., a concrete
decision or refusal of the Central Electoral Committee to
investigate the complaint, the legal proceedings commenced in
this case are to be terminated in pursuance of Part 2 of
Article 80 of the Law on the Constitutional Court.
Conforming to Part 2 of Article 80 of the Republic of
Lithuania Law on the Constitutional Court, the Constitutional
Court has adopted the following
decision:
To dismiss the legal proceedings instituted subsequent to
the inquiry of the President of the Republic following the
complaint of the Chairman of the Union of Social Justice of
Lithuania.
Conforming to Part 3 of Article 105 of the Constitution of
the Republic of Lithuania, as well as Part 1 of Article 73, and
Article 83 of the Republic of Lithuania Law on the
Constitutional Court, the Constitutional Court has presented
the following
conclusion:
1. The decisions of the Central Electoral Committee
regarding the results of the elections in Baltija Electoral
Area No. 20 are in compliance with the Republic of Lithuania
Law on Elections to the Seimas.
2. The decisions of the Central Electoral Committee
regarding the results of the elections in Pasvalys-Panevėžys
Electoral Area No. 47 are in compliance with the Republic of
Lithuania Law on Elections to the Seimas.
This Constitutional Court conclusion is final and not
subject to appeal.